The Constitutional Court was asked to decide whether Article 32, paragraphs 4 and 5, of Presidential Decree No. 600 of September 29, 1973, is constitutional, insofar as it provides for the inadmissibility in court of information requested by the tax authorities during the administrative phase that the taxpayer failed to produce or transmit.

The referral order of the Tax Court of First Instance of Rome challenged the evidentiary preclusion, considering it a violation of the rights of defense, of a fair trial, and of the right to silence. After reviewing the Court of Cassation’s evolving case law, which had already limited the scope of preclusion by excluding its application in cases where the taxpayer was not responsible for the failure to produce documents, the request was too general, or the data was already accessible to the tax authorities, the Constitutional Court deemed some of the constitutional questions unfounded and the rest inadmissible due to a lack of reasoning. However, this decision was made on the condition that the preclusion be interpreted more restrictively. According to the Court, the challenged provisions, framed within a deflationary logic aimed at promoting early dialogue, cooperation, and mutual understanding between the tax administration and the taxpayer, do not violate the constitutional parameters invoked by the referring judge as long as the preclusion does not apply when the documentation contains elements that are not unequivocally favorable to the taxpayer or that are already in the possession of the administration.

Under this interpretation, the evidentiary preclusion may only apply to information that unequivocally favors the taxpayer, meaning information that, if produced immediately, could have prevented an assessment or reduced the tax authority’s claim. Accordingly, information having a “mixed” content (such as, for instance, a ledger containing entries both in favor of and against the taxpayer) must be excluded from the scope of the sanction of inadmissibility.

 

(Comment by Chiara Francioso)