Jurisprudence

The “doubling” of the term does not work for the assessment of the Robin Hood Tax (CTP Rome, sent. of May 17, 2018, no. 13821/18)

2019

"DOUBLING" OF THE TERM DOES NOT OPERATE FOR THE ASSESSMENT OF THE ROBIN HOOD TAX. The so-called doubling of the ordinary term of assessment - envisaged, on a transitional level (tax periods before2016) by art. 1, paragraph 132, of Legislative Decree no. 208/2015, when a " violation that involves the obligation to report pursuant to art. 331 of the code of criminal procedure for any of the crimes provided for by Legislative Decree of March 10, 2000, no. 74”- can never operate with reference to the additional IRES for the energy sector (the so-called Robin Hood Tax) since the violations of the discipline of this tax are not criminally punishable. This is the principle recognised by the CTP of Rome with sentence no. 13821/18 of last July 9 (pres. Centi; rep. judge Volpe), intervened regarding the appeal of notices of assessment notified in 2016 by the Inland Revenue Agency with reference to a tax fraud allegedly perpetrated in annuity whose ordinary terms of assessment had already "expired". According to the applicant company, the existence of the "obligation to report" - ergo, the assessment of the existence of a criminal-fiscal violation - must be assessed on the production date of the effects of the final act of the assessment procedure, i.e. at the time of the notification of the assessment notice. Indeed, it is not disputed that the acts of the tax assessment procedure, like the generality of administrative acts, are subject to the tempus regit actum principle and that, therefore, to identify the rules applicable to the act to be issued, the Inland Revenue Agency must also consider the changes that the system undergoes during the procedure that leads to the issue of the same act. Therefore, for the purposes of regulating the doubling of the assessment terms, the Agency is required to assess whether, at the time of issuing the act, the criminal relevance of the violation that it intends to dispute persists; if, in fact, the penal significance of the alleged violation ceases to exist, the described assumption of "doubling" of the assessment deadline is lacking. In the case subject to the judgement, at the time of notification of the assessment notice there were no objective conditions for forwarding the criminal complaint for the tax fraud offense (art. 2 of Legislative Decree No. 74/2000), with reference to the declaration presented for the purposes of the Robin tax, since, as is well known, the Constitutional Court, with sent. of January 13, 2015, no. 10 declared the constitutional illegitimacy of such tax, due to the violation of articles 3 and 53 of the Constitution. The result is that any offence committed for the purposes of the Robin tax no longer has criminal relevance, as the essential behaviour nucleus referred to in art. 2 of legislative decree no. 74/2000 is lacking (and from the remaining type of offences linked to the breach of the discipline of such tax), or the filing of a fraudulent declaration for the purposes of the quoted tax. There is actually a case of ius receptum the principle according to which failure, due to the judgement of unconstitutionality, of the extra-criminal norm - such as that of a “fiscal” nature establishing the Robin tax - which contributes to determining the relevant criminal conduct determines the same retroactive effect of abrogation of the type of offence (so-called (abolitio criminis sanctioned by art. 2, par. 2, of the Criminal Code (see art. 673 of the Code of Criminal Procedure; cfr. Criminal Cass., sent. no. 9482/2005). With the consequence that the finding of the alleged violation for the purposes of the regulation of the Robin tax can in no case determine the integration of the requirements of the obligation of reporting to the Financial Administration pursuant to art. 331 of the Code of Criminal Procedure and, therefore, legitimise the "doubling" of the assessment term provided by the provision in the section. Nor does the fact that the Constitutional Court ruled that the declaration of unconstitutionality of the Robin tax operates only pro futuro , or "starting from the day following the publication of this decision " in the O.J. have any consequence. This original (and controversial) decision of the Court is, in fact, intended to have effects only with reference to the obligation to pay the tax referred to the tax periods preceding the declaration of unconstitutionality of the Robin tax, but it is not, vice versa, suitable to affect the operation of the principles enshrined in art. 2 of the Italian Criminal Code and the jurisprudence of the Supreme Court regarding the succession of criminal laws over time.

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