by admin11

Denounced ESTEROVESTIZIONE unlawful tax demand

12:46 pm in ATTORNEY ESTEROVESTIZIONE by admin11


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


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


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.


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


As evidence of dell'insanabilità

said imbalance have been highlighted the following


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-


(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.


Courier Tax 22/2011 1779


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


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-


(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.


1780 Courier Tax 22/2011


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.

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