TAX ALERT 2020/05
01-04-2020
The impact of Law Decree 17 March 2020, No. 18 “Cura Italia" on tax litigations
Article 83 of Law 17 March 2020, No. 18 (the "Decree") introduced urgent measures in the field of civil, criminal, tax and military justice in order to deal with the epidemiological emergency from COVID-19, as follows:
- postponement of all hearings scheduled in the period from 9 March to 15 April 2020 to a date subsequent to 15 April. Additionally, the heads of judicial offices are allowed, if they deem it necessary, to adopt ad hoc measures, including ordering the postponement of the hearings to a later date than 30 June 2020. Furthermore, the Decree provides for the limitation of access to the judicial offices, whereas it is ensured that the urgent activities are carried out. It is therefore to be expected that there will be adopted highly variable measures, depending on the decisions taken by the Presidents of the Provincial and Regional Tax Courts. In any case, it should be noted that the hearings of the pending tax litigations cannot be scheduled before 6 May 2020 in order to allow the parties to comply with the procedural deadlines (to be counted backwards) for the filing of the documents and defense briefs that have to be submitted respectively 20 and 10 full days before the hearing. With regard to the Supreme Court, its First President ordered already that, until 15 April 2020, the court registry’s activities and filings at the Supreme Court are limited to certain categories of urgent acts, which do not include the appeals and the counter-appeals before the Tax Chamber (Decree 25 March 2020, No. 648).
- suspension of the expiry of the terms for the carrying out of any procedural act, including the terms for initiating judicial proceedings and the terms for the notification of the appeals before the Tax Court of first instance, from 9 March to 15 April 2020. If the expiry of the term for the carrying out of a procedural act begins during the suspension period, it is deferred to the end of the above period (16 April 2020). As specified by the Revenue Agency in the circular letter 20 March 2020, No. 5/E, the postponement of the term (forward) to notify the appeals, triggers an equal postponement of the date on which the tax deed becomes enforceable.
The postponement and suspension indicated above do not apply in the proceedings for precautionary measures. In the tax field, however, the existence of an effective need for precautionary measures must now be assessed also in light of art. 68 of the Decree, which suspends the payments due between 8 March and 31 May, in relation to orders of payment and - as indicated in circular letter no. 5/E quoted above - to notices of assessment already forwarded to the collection agent. Therefore, if the judgment concerns these types of tax deeds, there does not seem to be an actual risk of damages, such as to justify the immediate examination of a request for precautionary measures. On the contrary, for other types of deeds, the need to prevent the enforceability could be urgent, with the consequence that the hearings may be scheduled, and the above mentioned suspension of judicial terms will not apply. This is the case, for example, of the notices of payment issued for the purposes of registration or inheritance taxes, of the notices for the recovery of tax credits, of the tax assessments not yet delivered to the collection agent, as well as - according to the interpretation of the Revenue Agency in the mentioned circular letter no. 5/E – of most of the notices of payment issued by the Municipalities and local authorities.
Finally, it has to be outlined the lack of coordination of the above mentioned suspension of the expiry of the judicial terms, provided for by Art. 83 (from 9 March to 15 April 2020), with the suspension of the terms related to the litigation activity of the tax offices, pursuant to Art. 67 (from March 8 to May 31, 2020). Having granted a longer period of suspension only to the tax offices triggers actually a procedural asymmetry raised by many parties, including the Court of Auditors which, with a statement of 25 March 2020, asked an amendment of the provision upon the conversion into law of the Decree, through the cancellation, from Art. 67, of the reference to "litigation".
