Service of tax appeals to the party in person: the Court of Cassation, with Order no. 28319 of 2025, rules out non-existence

In the diverse landscape of tax litigation, compliance with procedural rules represents a fundamental pillar for the validity of the entire proceedings. Among these, the rules governing the proper service of judicial documents, particularly the notice of appeal, play a role of primary importance. A common error, yet one with potentially disruptive consequences, concerns the identification of the correct recipient of the service: what happens if the appeal is served directly to the taxpayer rather than to their lawyer or authorized counsel at the elected domicile? The Court of Cassation addressed this delicate question with Order no. 28319 of 2025, which precisely delineated the boundaries between nullity and non-existence of service, offering an important clarification for professionals and taxpayers alike.

The case at hand and the decision of the Supreme Court

The matter originated from a dispute between G. (represented by the initials D. G. A.) and the Tax Authority. The Regional Tax Commission of Catanzaro had issued a ruling that was subsequently challenged before the Supreme Court. The crux of the appeal lay precisely in the regularity of the service of the notice of appeal, which was executed directly upon the party in person and not upon the counsel of record in the first-instance proceedings. The judges of the Court of Cassation, presided over by Paolo Di Marzio and with the reporting judge and drafter Marcello Maria Fracanzani, upheld the appeal, quashing the challenged judgment and remanding the case to the Regional Tax Commission of Calabria. The decision is based on a consolidated yet ever-relevant principle, which aims to safeguard the right of defense by avoiding excessive and destructive formalism.

Nullity versus non-existence: the principle of the Court of Cassation

To fully understand the scope of this decision, it is necessary to analyze the theoretical and practical distinction between a void act and a non-existent act. While non-existence is a radical and incurable defect that prevents the act from producing any legal effect, nullity is a less severe pathology that allows for the rectification of the defect with retroactive effects. The official principle of the order is reported below:

In tax proceedings, the service of a notice of appeal effected to the party in person and not to their counsel, at the declared or elected domicile, is void and not non-existent; the court must order its renewal ex officio pursuant to Art. 291 of the Code of Civil Procedure, unless the summoned party has entered an appearance in the proceedings, in which case the nullity must be considered cured ex tunc, in accordance with the general principle set forth in Art. 156, paragraph 2, of the Code of Civil Procedure.

As clearly stated in the principle, the Supreme Court categorically excludes that service executed to the party in person can be considered non-existent. Since it is a mere nullity, the appellate judge has the duty to order the renewal of service pursuant to Article 291 of the Code of Civil Procedure, unless the recipient has entered an appearance in the proceedings anyway. In the latter case, the act has achieved its original purpose, resulting in an automatic rectification with retroactive effect.

Practical consequences for tax proceedings

This ruling, which is in line with consistent precedents such as judgment no. 2707 of 2014, entails significant practical implications that can be summarized as follows:

• Obligation of renewal: The judge cannot declare the appeal inadmissible without first having ordered the renewal of the defective service, setting a peremptory deadline for the party to comply.
• Achievement of the purpose: If the taxpayer enters an appearance in the proceedings despite the service error, the defect is cured immediately from the moment of the first service (ex tunc effect).
• Protection of due process: This prevents purely formal errors committed by the serving party from prejudicing the possibility of obtaining a decision on the merits of the tax dispute.

Conclusions

In conclusion, Order no. 28319 of 2025 reaffirms a principle of legal civilization: the process must aim, wherever possible, at a decision on the merits rather than a resolution based on purely formal issues. Serving an appeal to the taxpayer instead of the defense counsel is an error, but not a fatal one. The possibility of curing such a defect ensures a fair balance between compliance with procedural rules and the substantive protection of the interests of the parties involved.