Published on 14 November 2022

FIRST SECTION

Application no. 32077/12 Grazia BRAMBILLA against Italy lodged on 16 May 2012 communicated on 25 October 2022

SUBJECT MATTER OF THE CASE

The application concerns the alleged impossibility for the applicant to exercise her right of defence in judicial proceedings before tax courts, instituted to challenge the tax assessment notice on the basis of which tax surcharges and tax fines were imposed on her.

In the context of tax assessment proceedings, the applicant was invited to submit clarifications to the Tax Authority regarding significant amounts of money deposited on her bank accounts, although no specific documents were requested. The request was issued pursuant to Article 51 of Presidential Decree no. 633/1972 and Article 32 of Presidential Decree no. 600/1973. The applicant’s sister submitted to the Tax Authority a brief, explaining that she had obtained the payment of her husband’s life insurances, and that she had deposited the money on the applicant’s bank account. She did not attach any document to support the claim.

On 24 November 2005 the applicant was notified of a tax assessment issued against her. The Tax Authority considered that the explanations provided by the applicant’s sister were not relevant and, in any case, had not been substantiated. Therefore, the applicant was found liable to pay 1,907,637.04 euros (EUR) in respect of tax surcharges, tax fines, costs and expenses.

On 21 May 2006 the applicant instituted proceedings before the Provincial Tax Commission of Teramo and submitted the documents which proved her allegations. The Commission ruled in the applicant’s favour and quashed the tax assessment notice. The Tax Authority lodged an appeal with the Regional Tax Commission. The latter considered that, pursuant to Article 32 §§ 4 and 5 of Presidential Decree no. 600/1973, the applicant could not invoke in her favour the documents substantiating her allegations, given that she had failed to deliver them to the Tax Authority when requested to do so. According to the Regional Commission, the latter provision applies not only when the taxpayer deliberately omits to produce the requested documents, but also when she or he does so out of negligence. Therefore, it confirmed the tax assessment notice and the tax surcharges and tax fines imposed on the applicant. The applicant lodged an appeal on point of law. On 12 December 2021 the Court of Cassation declared the appeal inadmissible.

The applicant complains under Article 6 of the Convention of a violation of the right to a fair trial. She argues that when requested to do so she could not, due to circumstances outside of her control, produce the documents requested by the Tax Authority which substantiated her allegations. Therefore, she considers that the application of Article 32 §§ 4 and 5 of Decree no. 600/1973, which precluded her from invoking the documents in judicial proceedings before tax courts, rendered her defence impossible.

QUESTIONS TO THE PARTIES

Did the applicant have a fair trial in the proceedings before the tax courts, in accordance with the criminal limb of Article 6 § 1 of the Convention?

In particular, taking into account:

- that pursuant to Article 32 §§ 4 and 5 of Decree no. 600/1973, as interpreted and applied by the tax courts in the applicant’s case, the latter could not invoke in the proceedings before the courts the documents capable of substantiating her allegations;

- that the same documents have been invoked as pieces of evidence in the criminal proceedings instituted against the applicant for the crime of omitting to declare revenues with the purpose of evading taxes; and

- that the Tribunal of Teramo, in judgment no. 776/2007 of 1 February 2008, acquitted the applicant because it considered that she had demonstrated that the relevant sums of money deposited in her bank accounts were not revenues that she had failed to declare to the Tax Authority;

was the applicant afforded, in the proceedings before the tax courts, a reasonable opportunity to present her case under conditions that did not place her at a disadvantage vis-à-vis her opponent (see, mutatis mutandis , Hentrich v. France , 22 September 1994, § 56, Series A no. 296-A, and Fatullayev v. Azerbaijan (no. 2) , no. 32734/11, §§ 79-80, 7 April 2022)?