Commentary on Judgment No. 9759 of 2024: The Legitimacy of Tax Assessment Notices under Article 36-bis of Presidential Decree No. 600

The Court of Cassation, with Order No. 9759 of April 11, 2024, addressed a crucial issue in tax matters: the legitimacy of tax assessment notices issued by the Revenue Agency concerning tax credits. The decision is part of a complex legal framework, intertwining the interpretation of tax regulations and taxpayers' right to defense.

The Case Addressed by the Court

The Court rejected the appeal filed by the State Attorney General's Office, confirming the nullity of a tax assessment notice issued under Article 36-bis of Presidential Decree No. 600 of 1973. The notice in question was issued by the Revenue Agency to disallow a tax credit, without any prior notice being sent to the taxpayer. This aspect is fundamental: the documentary check provided for by this article cannot resolve legal issues, such as the disallowance of credits.

Tax assessment notice pursuant to art. 36-bis of Presidential Decree No. 600 of 1973 - Disagreement on the interpretation of a legal provision - Legitimacy - Exclusion - Basis - Factual situation. The registration in the tax roll of the higher tax, pursuant to art. 36 bis of Presidential Decree No. 600 of 1973 and 54 bis of Presidential Decree No. 633 of 1972, is admissible only when the amount due is determined through a purely documentary check, based on the data provided by the taxpayer or on the correction of material or calculation errors. It cannot, however, be used to resolve legal issues. Therefore, the financial administration's disallowance of a tax credit cannot occur through the issuance of a payment notice, concerning the relevant amount, without being preceded by a notice, even a friendly one, for the recovery of said credit. (In the present case, the Supreme Court rejected the appeal against the contested judgment, which had correctly declared the nullity of the tax assessment notice pursuant to art. 36 bis of Presidential Decree No. 600 of 1973, with which the Revenue Agency had disallowed the credit for suspended advance payments exceeding the tax due, resolving an interpretative conflict between two different measures of the same Agency, and proceeded to its recovery, without having sent the taxpayer a prior notice regarding the outcome of the automated control procedure).

Legal Implications of the Judgment

This judgment has significant implications for taxpayers and the financial administration. In particular:

• It reiterates the principle that the issuance of a tax assessment notice must be preceded by a notice, even a friendly one, to guarantee the taxpayer's right to defense.
• It clarifies that documentary checks cannot resolve complex legal issues, such as the disallowance of tax credits.
• It reinforces the need for uniform interpretation of regulations by the Revenue Agency, avoiding conflicts between different measures.

Conclusions

The Court of Cassation, with this order, offers a clear message to both taxpayers and the Financial Administration: transparency and adherence to procedures are fundamental for a fair and equitable tax system. The importance of prior notice is not merely a formality but an essential element for guaranteeing the right to defense and the correctness of administrative proceedings. This represents an important step towards greater protection of taxpayers' rights and better management of tax disputes.