The statute of limitations applicable to tax taxes is the ordinary ten-year term. We study the case.
The Court of Cassation, with theOrdinance n. 23162 of 22/10/2020, clarified what are the statute of limitations for tax credits. In the present case, the Revenue Agency lodged an appeal in cassation against a sentence of the Regional Tax Commission of Piedmont, which had rejected the appeal. The dispute concerned an order for payment, referring to 15 tax collection notices, with respect to which the trial judges had held that the credits, indicated in the files, were all prescribed.
In challenging the sentence, the Revenue Agency complained of the violation of art. 2946 cod. of the Civil Code, on the matter of prescription of tax credits, where, in his opinion, erroneously, the second instance judge had considered the five-year limitation period applicable to the same credits. On the contrary, according to the financial administration, it was considered that the ten-year prescription period referred to in art. 2946 cod. civ.
And therefore the credits indicated in the files notified less than 10 years before the notification of the contested payment order they could not be considered prescribed. The Agency then contested the sentence for having the CTR applied to tax credits the five-year limitation period, provided for by Article 20, paragraph 3, of Legislative Decree n. 472/97 only for administrative sanctions. The applicant also noted that, even in this case, the five-year limitation period was valid only if the act of imposing penalties had not been issued at the same time as the act of recovery of the tax. In case of simultaneous application of sanctions and taxes, pursuant to art. 24, paragraph 1, of the Legislative Decree. 472/97, the collection of penalties was therefore in any case subject to the ten-year limitation period.
The decision on the statute of limitations for taxation
According to the Supreme Court, the first ground of appeal was well founded. The legitimacy judges point out that the statute of limitations applicable to the tax authorities is the ordinary ten-year one. For these types of taxes, the applicability of the short five-year prescription, pursuant to art. 2948 n. 4 cod. civ. Tax credits, stresses the Supreme Court, are not in fact comparable to periodic obligations to be paid year by year.
Although the obligations for tax credits consist of annual services, their amount may vary from year to year. Nor is it said that natural persons, or legal persons, produce the same taxable income year after year, it being possible to verify that for some years they produce no income at all, or that they produce to a greater or lesser extent.
Prescription for penalties in 5 years
Still according to the Supreme Court, the second reason for appeal was unfounded. In fact, the Court highlights that, in the matter of administrative sanctions for tax violations, the law explicitly establishes that the right to collection is prescribed within a period of 5 years. The thesis supported by the Agency was therefore not acceptable, according to which, in the event of a simultaneous request for payment of taxes and administrative sanctions, the ten-year term would be applicable to both.
Nor was the reference to art. 24, paragraph 1, of the Legislative Decree. 472/97, according to which the provisions on the collection of taxes to which the violation refers apply to the sanctions. This rule, the judges affirm, in fact only authorizes the collection agent to request payment of both credits with the same file. But it is not suitable for modifying the five-year limitation period, set for sanctions by the previous art. 20, paragraph 3.
The only case in which it is permitted to derogate from this specific limitation period is therefore that of a final judgment. Only in this case, that is, does the ten-year prescription term also apply to sanctions, by direct application of art. 2953 cod. civ.
–
