The new Italian rule about witness evidence in tax trials

Wednesday 5 October 2022

Roberto Iaia[1]
Pavia e Ansaldo Law Firm, Milan
roberto.iaia@pavia-ansaldo.it

Marco Jannon[2]
Partner and Head of Tax Department at Pavia e Ansaldo Law Firm, Milan
marco.jannon@pavia-ansaldo.it

Introduction

In the Italian law system, the very recent Law No 130/2022[3] has modified Legislative Decree No 546/1992, with regard to the provisions governing tax trials.

Article 4(1)(c) has eliminated the prohibition on obtaining witness evidence – which was a distinguishing feature of the previous rule – based on the premise that, preferably, evidence of the acts and facts which are relevant to the tax trials would be rooted in documents (statements, accounts, etc). Nevertheless, the settled Italian case law has admitted the possibility for both tax authorities and taxpayers to file written statements of third parties[4] with the tax court.

Statements (even if written) of testimonial content are, however, also relevant in tax trials (eg, for the purpose of denying the deduction of value added tax (VAT) to the taxpayer if he/she is aware of possible tax fraud by his/her own suppliers).[5]

The current rule states that the tax court, if it deems it necessary for the purposes of its decision and even without the agreement of the parties, may admit a written testimony, which is regulated by Article 257a of the Italian Code of Civil Procedure (ICPC).

It could be questioned whether the new legal framework authorises the introduction of oral testimonial evidence as well, in light of:

  1. the abovementioned repeal of the prohibition to obtain testimonial evidence;
  2. the general applicability of the ICPC (which contemplates this kind of evidence)[6], given the lack of specific provisions for tax trials;[7] and
  3. the observation that the discipline of written testimony[8] is grafted into a regulatory system (the procedural-civil one) that provides, precisely, for the witness examination and, therefore, oral evidence.[9]

A different interpretation would be abstractly conceivable. One could speculate that the legislator eliminated the prohibition on obtaining testimonial evidence only to admit written testimony under Article 257a during tax trials and not also to allow oral testimony.

Either way, the reference to Article 257a ICPC implies that:

  1. the court may:

    (i) require the witness to provide, in writing and within a specified time limit, answers to the questions on which he is to be examined;

    (ii) order that the party who requested the taking of testimony prepares the witness statement form in accordance with the allowed questions and have it served on the witness; and

    (iii) arrange for the witness to be called to testify before the court, after examining the answers or statements made in writing;

  2. the witness shall:

    (i) make its statement by filling out the witness form in its entirety, with separate answers to each of the questions, and specifies which ones he is unable to answer, stating the reason why; and

    (ii) sign the statement by affixing his notarized signature on each page of the form, which can be sent in a sealed envelope by registered mail or delivered to the court’s clerk office.

Any aspect of the matter should be considered in compliance with the legal system.

Only oral testimony, taken during a tax trial, allows for an evidence-based approach, matured during the debate of the parties before the judge, and which is open to the opposition of the defendant through:

  • the cross-examination of the witness; and
  • the hearing of defence witnesses.

These are the principles required for the purposes of a ‘fair trial’,[10] pointed out by the European Court of Human Rights (ECtHR), also with reference to the case regarding tax penalty charges.[11]

It should be considered that written testimony could also concern persons whose defence testimony is requested by a person accused of a tax violation.

However, the new regime does not explicitly contemplate the cross-examination of the prosecution witness, which is characterised by oral deposition taken immediately after the hearing, in order to assess the reliability of the accuser and the statements made by them.

In other words, the trial debate seems to prefer and require oral rather than written witness evidence and the Italian provision does not seem to consider it.

On the other hand, even if the procedural-civil rules of oral witness evidence were deemed applicable, the results would not be entirely consistent with the indications that can be drawn from the supranational case law.

In fact, Article 253(1) ICPC states the court’s power to request, also upon one of the parties’ application, clarifications from a witness after his or her testimony.

Nonetheless, the above is not the cross-examination of the prosecution witness, which the ECtHR case law looks to and which, instead, Article 253 of the Code of Civil Procedure inhibits at paragraph 2 (‘It is forbidden for the parties [...] to directly examine witnesses’).

In this regard, it is worth noting that, under Italian law, the norms of international conventions (including the European Convention on Human Rights (ECHR)) represent supplementary parameters of Article 117(1) of the Italian Constitution, according to which state legislation is subordinate to the constraints arising from international law.

Therefore, the ECtHR, the most qualified interpreter of the ECHR, outlines the content of these constraints.[12]

For these reasons, the new regime does not appear to be entirely consistent with Article 117(1) of the Italian Constitution, as supplemented by Article 6 ECHR, as interpreted by the ECtHR, at least where it does not allow cross-examination of the prosecution witness.

But there is more. The new rule allows written testimony only in regard to factual circumstances, other than those attested by a public official, where the tax claim is based on tax audit reports or other acts that are deemed true and reliable until a forgery claim (‘querela di falso’) is submitted before a (civil) court if it ascertains the untruthfulness of such content.

The provision should be coordinated with the Italian Court of Cassation case law, which considers worth of public trust (‘fede pubblica’), within the above specified limits, only the so-called ‘extrinsic content’ of an administrative act, as Article 2700 of the Italian Civil Code provides: the ‘authorship of the document by the public official who wrote it’, as well as the ‘statements of the parties and other facts that the public official attests having occurred in his presence or having been made by him’.

Instead, said provision does not extend to the so-called ‘intrinsic content’, which may also be untrue and, therefore, open to challenge.[13]

To that effect, public trust might concern, for example, the fact that a person has made accusatory statements against a taxpayer, transposed in a tax audit report, but not also the intrinsic truthfulness of those statements, in relation to which, therefore, witness evidence should be allowed.[14]

Conclusion

For these reasons, the recent reform, regarding witness evidence in relation to the Italian tax trials, reveals several critical issues and seems rather far from being satisfactory.

 

[1] Of counsel and Head of Tax Litigation at Pavia e Ansaldo Law Firm, Milan. External Lecturer in Tax Law at University of Padua (Italy). Member of the IBA Taxes Committee.

[2] Partner and Head of Tax Department at Pavia e Ansaldo Law Firm, Milan. Member of the IBA Taxes Committee and the IBA Private Client Tax Committee.

[3] See Official Gazette of the Italian Republic (Gazzetta Ufficiale della Repubblica Italiana), 1 September 2022, No 204.

[4] Italian Constitutional Court, 21 January 2000, No 18.

[5] See, inter alia, Court of Justice of the European Union, 6 July 2006, Cases C-439/04 and C-440/04, Axel Kittel v Belgian State (C-439/04) and Belgian State v Recolta Recycling SPRL (C-440/04).

[6] Art 244 et seq ICPC.

[7] Art 1(2) of the Italian Legislative Decree No 546/1992.

[8] Art. 257(a) ICPC.

[9] Art 244 et seq ICPC, mentioned above at n 4.

[10] Art 6 EHCR.

[11] See ECtHR, 4 May 2017, No 15485/09, Chap Ltd v Armenia. Specifically, the defendant’s right to cross-examine and to examine defence witnesses are provided for in Article 6(3)(d) ECHR, regarding ‘criminal charges’ to which administrative infringements are assimilated in light of the so-called ‘Engel criteria’:

‘[…] it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. […]

The very nature of the offence is a factor of greater import. […]’

However, supervision by the Court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring”: ECtHR, 8 June 1976, no. 5100/71, Engel and Others v Netherlands, point 82.

[12] Italian Constitutional Court, 24 October 2007, Nos 348–349.

[13] See, inter alia, Italian Supreme Court of Cassation, Tax Chamber, 20 December 2019, No 34170.

[14] All the more so in light of the international conventional rules on the rights of the accused: Art 6 ECHR; see ECtHR, Chap Ltd v Armenia, as n 10 above.

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