The recent ruling by the Italian Supreme Court, as outlined in decision 24955, addresses the complex interplay between the secrecy of investigations and the rights of taxpayers during domiciliary access by tax authorities.
The court emphasized that the denial of access to the prosecutor's authorization, which is based on serious indications of tax law violations, does not inherently invalidate the tax assessment.
Instead, the taxpayer must demonstrate that this denial has caused a tangible and appreciable harm to their right to defense.
This decision appears to diverge from the stance of the United Sections, which have previously held that the violation of a taxpayer's domicile—a constitutionally protected right—does not require an explicit nullity provision for the act to be considered void.
The case in question involved a professional who was subject to a tax assessment following domiciliary access authorized by the Public Prosecutor's Office.
The taxpayer contested the denial of access to the reasoning behind the authorization, citing the need to understand the serious indications of tax violations that justified the access.
The Supreme Court's ruling underscores the need to balance the taxpayer's request for information with the requirements of criminal investigations.
The court maintained that the denial of access to the prosecutor's authorization does not automatically lead to the nullity of the tax assessment.
However, the taxpayer must prove that the denial has adversely affected their defense rights.
Typically, tax authorities notify the taxpayer of the prosecutor's authorization, which usually acknowledges the presence of serious indications of tax violations without further elaboration.
To gain insight into these indications, one must obtain the request made by the tax authorities to the Public Prosecutor's Office.
Historically, legal doctrine, jurisprudence, and even the Guardia di Finanza have regarded these as administrative acts.
The prosecutor's involvement is not due to potential criminal offenses (as it is not a search warrant) but as a safeguard concerning the fiscal activity to be conducted, which infringes upon the taxpayer's domicile.
In this context, the prosecutor's denial is peculiar, given that it pertains to an administrative activity intended to protect the taxpayer, even though it is subsequently included in the criminal investigation file.
Furthermore, the ruling suggests that there is no provision for the nullity of the act in this scenario.
However, the United Sections have, on various occasions, asserted that when a taxpayer's domicile is violated for fiscal purposes, an explicit nullity provision is unnecessary for the act to be considered void.
It is also noteworthy that the ruling only addresses the infringement of the taxpayer's right to defense, without considering the violation of domicile rights.
Additionally, since the serious indications hypothesized are not concretely known, the tax judge is deprived of the substantive review that is their prerogative in such cases.
It is evident that proving the impairment of the right to defense due to the lack of knowledge of the serious indications is nearly impossible.
Until now, jurisprudence has required the taxpayer to identify which part of the administration's contestation was based on findings from the allegedly unlawful domiciliary access, thereby determining which part of the assessment was unusable.
Finally, the ruling does not mention the new regulation (introduced by Legislative Decree 219/2023), which renders evidence obtained in violation of the law inadmissible for assessment purposes.
The absence of reference to this regulation leaves uncertainty as to whether it is due to the case predating the new law or if such a violation is deemed irrelevant for inadmissibility.

Insights:

The ruling highlights the ongoing tension between the need for secrecy in criminal investigations and the protection of taxpayer rights. It underscores the importance of ensuring that legal processes do not infringe upon constitutional rights, such as the right to domicile privacy. The decision also reflects the challenges faced by taxpayers in navigating complex legal frameworks and the burden of proof required to demonstrate impairment of defense rights.

Issues:

The decision raises several critical issues, including:

• The potential conflict between investigation secrecy and taxpayer rights.

• The difficulty taxpayers face in proving defense impairment without access to the prosecutor's reasoning.

• The lack of consideration for domicile rights in the ruling.

• The absence of reference to new legislation affecting the admissibility of unlawfully obtained evidence.