Agency revenue bills must show absence


Office shall be responsible to prove the nonexistence of trade invoiced

But when the expense is not regularly documented by bill, the taxpayer is required to prove that, compared to more established revenue, costs were incurred relating to the activities carried


By judgment No.. 18710 of 23/9/2005, The Supreme Court has ruled that in cases where the Office considers that the invoices are accounted for by a non-existent transactions, not for the taxpayer to prove the opposite, that is the reality of transactions billed, but to demonstrate to the tax that they have never been put in place.

The Regional Tax Commission of Palermo had legitimized the tax recovery arising from a notice of assessment with which they were disowned, inter alia, certain costs related to operations deemed non-existent.
Particularly, the finance office had argued, reasons connected with “by reference into” Minutes of a Guardia di Finanza, that the corporate structure was not suitable for the implementation of the work described in the invoices exhibited by the taxpayer.
The appeals judges, considered that the party had failed to file a technical report describing the industrial plant, which had also announced its plans to, and had not provided any evidence regarding the actual performance of the invoiced, had held that the tax could be entitled to recover loss of production of evidence to the contrary.

The Supreme Court has ruled that instead, being itself the invoice suitable instrument, pursuant to Article 21 of Dpr 26 October 1972 n. 633, to document a cost to the enterprise, “in the case of bills that the Administration considers its operations to non-existent, not for the taxpayer to prove that the operation is effective, but it is up to the Administration, argues that the falsity of the document and, then the existence of a greater tax, prove that the commercial operation, to an invoice, in fact has never been put in place“(1).

The judgment under review presents some interesting, because, if in relation to the concrete case of invoices for nonexistent transactions is reiterated that the burden of proof is borne by the tax offices, it also confirms that in principle it is the taxpayer who, if he wants to challenge the elements and situations taken to basic income adjustments, must prove the groundlessness of the same, or “support the existence of circumstances or modifying the same estintive“.
Consequently, it follows that, If the taxpayer wants to enforce the provisions of Article 109, fourth paragraph, of Tuir(2), admits that the deductibility of certain items resulting from the negative components and precise, must be able to document the existence of a higher cost than declared and / or office considered when determining the business income.

Basically, if the cost that a company wants to bring down the income is documented by an invoice dated, numbered and provided with the information required by that article 21 of Dpr 633/1972, The office is evaluating whether the elements of the tax law for the purposes of the deductibility of the cost (and possible tax deductibility), which jurisdiction, the inherent, the adequacy, but to question the effectiveness of the commercial operation to which the invoice relates, must provide evidence that the provision of services and / or disposal of assets have never been put in place. Instead, if spending is not regularly documented by bill, that can not be the same taxpayer to show that, compared to higher revenues from the office established, costs were incurred due to such year and related activities pursued.

1) The judges of legitimacy have made explicit reference to those already raised in the judgment of Cass. 5 February 1997, n. 1092, where one defines “unexceptionable” the principle that “the burden of proving the negative components of income burden on the taxpayer shows them as deductions“. Principle, however, it is considered that is not applicable in this case, deemed non-existent because the task is documented by the same invoice.

2) “The costs and expenses specifically related revenues and other income, that although not resulting expensed in its taxable income, are allowed as deductions if and to the extent that certain elements are accurate and” (Article 109, comma 4, last period, of Dpr 917/86, as amended by Decree 344/2003).

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