field studies
Denounced ESTEROVESTIZIONE unlawful tax demand
12:46 pm in ATTORNEY ESTEROVESTIZIONE by admin11
Denounced
the illegality of Community
of field studies for VAT
TheCommission to examine the compatibility of Community law and practice, the Italian tax
dell'AIDC complained to the EU Commission of illegality of the Community
tax assessments based on field studies. The membership of sector studies to
«standardized tests'Underlines the contrast with the principle of subjectivity of
taxable income for the purposes VAT, which can not be that the actual. Neither can be considered
the statistical results can be translated into personal and actual results following the
contradictory between Treasury and taxpayer, characterized by a 'physiological» imbalance
between official, a strong rebuttable presumption, and taxpayer, who bears the burden
of, often difficult, True Crime.
Tues Joseph Miller Wood
Joseph Holzmiller - President of the Commission for consideration
compatible with Community law and practice of the Italian tax (AIDC)
1778 Courier Tax 22/2011
IVA
standardized is quick to
out the contrast with the
established principle of subjectivity
of taxable income
for VAT, which can not
be that those "real
», subject only exceptional
value assignments
different under the Directive
2006/112/EC 28 November
2006 (normal value
former art. 80 the same Directive).
In this sense, of verdicts
the Court of Justice mentioned
in complaint, worth
recall here those of 20
January 2005, Case C-412/03, «Hotel Scandic»
(1) and of 29 March 2001, Case C-404/99, «Commiss./
Rep. French ' (2) as a emblematic
a mandatory orientation Consolidated.
Meaning of adversarial
Must recognize that the highest law
has prompted the Treasury to abandon previous
positions of greater illegitimacy in the Community
probative value of field studies made,
at first, by a well-established legal presumption,
configured, and then as a rebuttable presumption, only
more recently, rebuttable presumption that.
However, that the Court of Cassation therefore sought
necessary to qualify the adversarial, between official
of the Revenue and the taxpayer, to
way as a legal instrument that can "customize
» (that is to say "subjectivise") the results
Statistical attributable to the same taxpayer
called upon to justify the lower income achieved.
In turn, the officer of the Revenue
can reject or accept, in whole or in part,
such evidence, even better if in agreement
with the taxpayer even on a lump
and / or settlement, something that will, once again,
further betrays the principle of subjectivity
revenues.
It is therefore clear that the Inland Revenue
and the Court of Cassation "load" the contradictory
a function of 'effectiveness' of revenue,
instead, it does not have to be replaced by a remedy
only fictional and apparent.
Insufficiency
the adversarial
To prove the inability
adversarial "to transform
"The statistical results
(field studies) results in
personal and Actual
emphasis was also placed in other
aspects of a "physiological"
imbalance in the comparison
between official, strong
a rebuttable presumption,
one side, and taxpayer,
who bears the burden daunting
of proof to the contrary, other
part.
As evidence of dell'insanabilità
said imbalance have been highlighted the following
reality:
a) absolute inability to challenge the results
of field studies as determined by processing
so complex statistical and mathematical
and sophisticated as to be unverifiable or
taxpayer concerned or by their more
experienced defenders;
b) use of rules and illogical of determinations
subjective in statistical studies
Industry. Also worth mention here only the exclusion
of loss-making enterprises from representative sample
which is a 'nonsense'
even statistically;
c) irrelevance of the subjective positions of the entrepreneur
that, instead, normally affect the progress
the management.
Worth remembering also only the degree of susceptibility
aptitude and intellectual ability and
intuitive entrepreneur, his technical training
and commercial to not repeat here other positions
subjective definitely influential on the results
economic enterprise.
Despite the limitations just refer the taxpayer
is forced to confront the results of
field studies, apodictically attributable to the
its specific position; on the other hand he may just
demonstrate their applicability in his case with-
Note:
(1) In GT – Riv. Jur. trib. n. 4/2005, the. 309, with commentary by R.
Fanelli, and in Banca Dati BIG, IPSOA.
(2) In Banca Dati BIG, IPSOA.
Failure of the adversarial
In the necessary debate between
official and the taxpayer for
findings from field studies on
taxpayer is in the absolute
impossibility of contest i results
studies as determined by
statistical and mathematical processing
such complex and sophisticated that
be substantially not
verifiable and detached from any
influenza of subjective positions
dell’entrepreneur that, instead,
normally affect the progress
the management.
THE PROBLEM OPEN
Courier Tax 22/2011 1779
IVA
Decree to be himself,
or her business, affected
with out any of the exceptional situations
lack of strictly
recognized by the Agency
revenue, which
a possible significant disease,
a calamity of the
and the like.
It seems therefore established that,
in essence, The findings
from field studies constitute
postulates of income and
However, taxable income
predeterminable based
only factors of production but in complete ignorance
the business value and of all other
variables specific to any business case.
The whole pace and effectiveness of revenue
proceeds, Waiting also makes it impossible, for the taxpayer,
to rely on the findings of its
accounts even though this is never found
challenged.
Finally, the further away from the necessary
subjectivity in revenues occurs when the taxpayer
is induced to adapt spontaneously
their income levels, however, disconnected from its
Actual results if the same taxpayer,
conscious of its limitations in evidentiary
comment, did not participate in adversarial
resulting in automatic allocation of revenues
sectoral studies, although not proven otherwise.
Aspects of similarity with the tax amnesty
Another element in the foundation of complaint
in the comment is made by analogy (ben
detailed in the aggregate II / B, n. 1) existing between the
amnesty 'simple' IVA (declared illegal
by the Court of Justice, Grand Chamber, by judgment
17 July 2008, Case C-132/06, "Commission
EU / Italy ") (3) and 's' spontaneous adaptation
"By which, paying a premium
of 3% adaption, the taxpayer
can enjoy the exemption provided by Article. 10-
have Law 8 May 1998, n. 146.
Illegality of the inversion
burden of proof
The report also highlights how the already explained
imbalance to the detriment of the taxpayer
within the adversarial
makes it very difficult
evidence contrary to his post
load, so as to translate the substantial
reversal of
of proof in a real
own presumption of "guilt
"A burden" to
disability 'for the same taxpayer,
presumed "guilty
».
The complaint calls, in this respect,
rulings by the
Court of Justice 9 December
2003, Case C-129/00, "Commission
EU / Italian Republic " (4) and of 9 July 2009,
Case C-397/07, "EU Commission / Spain
», where the inversion is found to be illegal
burden of proof when it appears
particularly difficult and where (p. 29 and 30 of
second judgment) is forbidden to apply
the above scheme by way of being generalized
allowed to apply only in circumstances "specific
"Incorporating an abuse or fraudulent
(as well as already ruling the Court of Justice
EU, 7 June 2007, Case C-178/05, "Commission
EU / Greece ») (4).
Although in recent times the general reversing
burden of proof seems to become
the subject of an incomprehensible indulgence by
European Commission, the competent Committee
complainant (AIDC) also is considering
the opportunity to extend the complaint
comment, now reads only the VAT, also to
direct taxes, arguing, among other
relevant reasons, also that the burden
of the test described the waiting position
substantial imbalance of the taxpayer.
That is because the purpose of the complaint is not
When only the obtaining of an intervention solver
by the European Commission under
its task of overseeing the conflicting rules
with Community law, but (the complaint)
is also intended to support the reasons for the contribution-
Note:
(3) In GT – Riv. Jur. trib. n. 11/2008, the. 937, with commentary by G.
Tinelli, and in Banca Dati BIG, IPSOA.
(4) In Banca Dati BIG, IPSOA.
Analogy with the tax amnesty
An element of the foundation of
complaint of unlawful Community
investigations based on VAT
field studies is
by 'analogy between the remission
'Simple' VAT, declared illegitimate
by the Court of Justice, and
the "spontaneous adaptation»
by which, paying a
increase of 3%, the taxpayer
can enjoy the relief provided
legislation on field studies.
THE PROBLEM OPEN
1780 Courier Tax 22/2011
IVA
tors unjustly affected by assessments based
on field studies through the production
them suitable appeals in which to do, end of ora,
reference to that complaint even
make them the subject of allegation concerning.
It's personal thoughts of the writer that, malgrado the
European Commission remains institutionally invested
an important task of overseeing the
States, it also plays a crucial
role of "political" as the Union's executive arm
Europe-wide action, inter alia, the maintenance
the necessary balance with the same Member; equilibria
that these, at times, are not entirely
no effect on the degree of rigor with which they are appreciated
The alleged conflict of laws and practices
regarding tax.
From here the opportunity to involve withholding, with
appropriate remedies, also judges national tax
(First Provincial Tax Commission
and the Regional Tax) which are the
first Judges 'natural' and the EU, as such,
guarantors of the primacy of Community law and
Members – in case of doubt about their – to resort
prejudicially to the Court of Justice
EU, certainly more impervious to impact
other than those purely legal.