Provincial Tax Commission
Lecce Section II Judgement March 15, 2010, No 206
Defects alerts raised are undeniable and L. No 890/1982 is also observed in relation to the notification of payment forms in Vitu court that Article. 26 of Presidential Decree No. Articles 602/73 ago. 148 and 149 CCP. However, under art. 159, paragraph 3, Code, can not be ignored that if the failure to act to prevent a certain effect, the act may, however, produce other effects to which they are suited. This account represents the clearest expression of the principle of conservation of the effects of zero. Therefore, a recipient of a notice of assessment taxpayers affected by the same defects reporting alleged by the applicant is in a position to understand the reasons of alleged tax appeal and sound notification of defects under Article. 156 Code of Civil Procedure for the notice of assessment achieved the purpose for which it was issued.
regarding the exception referred to in paragraph 2 above), you should consider that the arguments of the Office are not sufficient to authenticate the alert notification to the applicant's good-natured. Question registry can not replace the receipt of the letter by which taxpayers are advised of the deficiencies noted by the Office. With regard to the systematic reconstruction of the rules made by the applicant, the same can not be shared by this college. In fact, art. 1, paragraph 2 of the Ministerial Decree No 03/09/1999 321 regulating the content of the role. Article. 6 of the Decree states that "the minimum content of the folder payment is made from the evidence that, under Article 1, paragraph 1 and 2, should be listed in the role, with the exception of the date of delivery of the role and the dealer Code of Articles of the role and scope. " Article. 25 of Presidential Decree No. 602/73 refers to the discipline of the said Decree. Therefore, you can not share the view that were mandatory in specified folder and roles, on pain of nullity, the extremes of good-natured warnings and their respective dates of reporting as an essential element of the role and then the folder. Conversely, it is also endorsed the view that the good-natured non-receipt of the notices in question determines the invalidity of the folder as the steps necessary to ensure the right to participate in the administrative procedure to allow taxpayers to be able to make the necessary checks on 'function of financial administration (CTP Salerno 13 November 2001, no 232 CTR Piedmont May 29, No 35; Torino CTP April 3, 2000, No 31; CTR Veneto November 24, 1997, No 100).
In the plea referred to in paragraph 3), is to detect the lack of calculation of interest and in relation to arrangements for determining penalties. The assumption of the Office of the absence of defects of their role or the folder is not shared then was a defect in their role or folder. The contents of the folder does not allow you to operate any scrutiny of the Finance Ministry. Therefore, there is transparency of the Office in violation of the right of defense of the taxpayer. It follows that the amounts entered on the rolls may be likely but also candles and payable. A close look at the art. 12, paragraph 3 ("the amount of tax due and the interest, surcharges and penalties") and art. 25 and the "ratio" of repealed Art. 17 of Presidential Decree No. 602/73 allows the application to its list of the amount due and not of sums not due. In this case, the AF was therefore required to prove the legality of their actions in terms of interests, outside the procedure followed in their assessment. Established then, is the exception because the applicant is not the same is it possible to understand how the Office has acted. There is interference with the right protection for the contents of the folder in question does not allow the taxpayer to carry out any checks. In this sense, has already expressed the Supreme Court that "the folder is unlawful payments in a way that gives the cryptic codes only the charge required, not understanding the taxpayer reconstruction difficult operations through the work of the Office of interpretation code enumerations "(Court of Cassation Sec. Tributary of the September 16, 2005, No. 18415). In this case the assumption of the Office is not enough content in rebuttal and reiterated at the hearing, according to which the interest would be calculated in accordance with the provisions of the law. Founded and therefore the exception of the applicant's argument that the determination of the interest claimed is merely an act of faith.
In the plea referred to in paragraph 4) complained about the absence of details of the leader of the administrative procedure that the Commission considers a ground for invalidity.
Finally, on the plea referred to in paragraph 5) there is no running of time to sign up for the role because of the extension of deadlines for the statements made in the years 2001 and 2002.
Tax Commission PROVINCIAL
LECCE
SECTION 02
Judgement No. 206/02/10
Conduct of the process and reasons for the decision against the folder
No payment 059 2006 00xxx, Role issued by the Inland Revenue - Office of Lecce 2, VAT, IRAP, additional regional income tax and personal income tax deemed, for the tax years 2000 and 2001, together with penalties and interest, represented and defended by Dr. . xxx, right at the bottom of attorney to the application, filed a timely appeal by pleading:
1) notification of defects is not remediable through art. 156 CPC, the applicant contends that there was no notification because of the relata in white. The same also contends that the violation of Article. 3, paragraphs 1 and 2 of L. No 890/82 for not completing the special mass relata in terms of those paragraphs. The applicant also alleges that the absence of record of service involves the absence of the tax since it is an administrative and substantive recettizio that comes to light only with the completion of each phase of the ritual process of the birth;
2 ) that "good-natured warnings recalls the folder identified in their details but not in their presumed date of notification and a good-natured warning not identified totally unknown in its details and without playing the content, nor any allegation. It is therefore on pain of nullity, in complete violation of the L. No 212/00 "(right in point 6). In fact, the applicant contends that these are three acts mentioned and never received. So claiming non-receipt of three notices good-natured, the applicant pleaded the invalidity of the folder and the role is because they were given their extreme in the folder, including data from the notification, and because the non-receipt of the notice was prejudicial to good-natured participate in administrative proceedings;
3) that "the Office also falls on the payroll amounts by way of interest without any explanation about the basis for calculating the rate and the period of delay, is also expected that the rates may be different. ... Nothing is known concerning the calculation of interest and, therefore, is absolutely not true that what is reported in the folder, is consistent with the amounts reported in the acts mentioned as unknown. ... The amounts entered on the rolls are simply unknown interests from the outset, in the middle of roles and lack of motivation of the folder. " The taxpayer then claims a breach of Article. 24:25 Presidential Decree No 602/73.
4) absence of essential elements of the folder and the role in accordance with Art. 7, paragraph 2, letter c) of L. No 212/00, even if these estimates are considered by the "exhaustive". The taxpayer argues that the law No 212/00 has integrated the content of Article exhaustive. 25 of Presidential Decree No. 602/73, which in this case was clearly violated, on pain of nullity and the role of the folder. Therefore missing the details of the leader of the administrative procedure and an indication of the administrative authority to which they can address in the self-defense.;
5) the running of time for notification on 31.12.2005 for the folder.
The office of Lecce 2, in its counter-claims:
- its strangeness about possible defects in the folder;
- better known as the communications took place good-natured warning, arguing with the results from interrogation registry;
- the irrelevance of exceptions related to essential elements and the role of the folder because the folder has been prepared in accordance with applicable law;
- Extension of the deadline for enrollment in the role for the statements made in the years 2001 and 2002.
SOBARIT spa constituted in court says:
- the rectification of any defects in notice for the applicant submitted the application;
- the lack of capacity to be sued in respect of the role also claims breach of redattola folder in accordance with provisions of art. 25 of Presidential Decree No. 602/73 and the models adopted by decree by the Ministry Finance dated 31.12.1996 and subsequent amendments and / or additions.
The appeal is based and must be upheld.
In relation to the exceptions referred to in paragraph 1), relating to notification of defects, the argument of the appellant, while full of ideas doctrinal and jurisprudence, in the opinion of this Board is not acceptable and should be censored. Defects alerts raised are undeniable and L. No 890/1982 is also observed in relation to the notification of payment forms in Vitu court that Article. 26 of Presidential Decree No. Articles 602/73 ago. 148 and 149 CCP. However, under art. 159, paragraph 3, Code, can not be ignored that if the failure to act to prevent a certain effect, However, the act can produce other effects which are suited. This account represents the clearest expression of the principle of conservation of the effects of zero. Therefore, a recipient of a notice of assessment taxpayers affected by the same defects reporting alleged by the applicant is in a position to understand the reasons of alleged tax appeal and sound notification of defects under Article. 156 Code of Civil Procedure for the notice of assessment achieved the purpose for which it was issued.
regarding the exception referred to in paragraph 2 above), you should consider that the arguments do not suffice to establish the Office has service degli avvisi bonari al ricorrente. L’interrogazione anagrafica non può sostituire la ricevuta della lettera raccomandata a mezzo della quale si avvisano i contribuenti delle irregolarità rilevate dall’Ufficio. In ordine alla ricostruzione sistematica delle norme applicabili fatta da parte ricorrente, la stessa non può non essere condivisa da questo collegio. Infatti, l’art. 1, comma 2 del Decreto Ministeriale 03.09.1999 n. 321 disciplina il contenuto del ruolo. L’art. 6 del medesimo Decreto stabilisce che “il contenuto minimo della cartella di pagamento è costituito dagli elementi che, ai sensi dell’articolo 1, comma 1 e 2, devono essere elencati nel ruolo, ad eccezione della data di consegna del ruolo stesso dealer and the Code of Articles of the role and scope. " Article. 25 of Presidential Decree No. 602/73 refers to the discipline of the said Decree. Therefore, you can not share the view that were mandatory in specified folder and roles, on pain of nullity, the extremes of good-natured warnings and their respective dates of reporting as an essential element of the role and then the folder. Conversely, it is also endorsed the view that the good-natured non-receipt of the notices in question determines the invalidity of the folder as the steps necessary to ensure the right to participate in the administrative procedure to allow taxpayers to be able to make the necessary checks on the work of financial administration (CTP Salerno November 13, 2001, n. 232; CTR Piedmont May 29, 35, Torino CTP April 3, 2000, n. 31; CTR Veneto November 24, 1997, No. 100).
In the plea referred to in paragraph 3), is to detect the lack of calculation of interest and in relation to arrangements for determining penalties. The assumption of the Office of the absence of defects of their role or the folder is not shared then was a defect in their role or folder. The contents of the folder does not allow you to operate any scrutiny of the Finance Ministry. Therefore, there is transparency of dell’Ufficio in violazione del diritto di difesa del contribuente. Ne segue che gli importi iscritti a ruolo potrebbero essere probabili ma non anche ceri e dovuti. A ben osservare, l’art. 12, comma 3 (“l’ammontare dell’imposta dovuta nonché quello degli interessi, delle soprattasse e delle pene pecuniarie”) e l’art. 25 nonché la “ratio” dell’abrogato art. 17 del D.P.R. n. 602/73 consente l’iscrizione a ruolo dell’importo dovuto e non anche di somme non dovute. Nel caso di specie l’A.F. aveva dunque l’obbligo di provare la legittimità del proprio operato in tema di interessi, esternando l’iter seguito nella determinazione degli stessi. Fondata then is the same except the applicant because it is not possible to understand how the Office has acted. There is interference with the right protection for the contents of the folder in question does not allow the taxpayer to carry out any checks. In this sense, has already expressed the Supreme Court that "the folder is unlawful payments in a way that gives the cryptic codes only the charge required, not understanding the taxpayer reconstruction difficult operations through the work of the Office of interpretation code enumerations "(Court of Cassation Sec. Tributary of the September 16, 2005, No. 18415). In this case, the assumption is not sufficient Office contained in the rebuttal and reiterated at the hearing, according to which the interest would be calculated in accordance with the provisions of the law. Founded and therefore the exception of the applicant's argument that the determination of the interest claimed is merely an act of faith.
In the plea referred to in paragraph 4) complained about the absence of details of the leader of the administrative procedure that the Commission considers a ground for invalidity.
Finally, on the plea referred to in paragraph 5) there is no running of time to sign up for the role because of the extension of deadlines for the statements made in the years 2001 and 2002.
Sussistono dunque valide ragioni per compensare le spese di giudizio.
P.Q.M.
La Commissione accoglie il ricorso, annulla la cartella di pagamento impugnata compensando le spese di giudizio.
Lecce, 28/11/2007.
Depositata in segreteria il 15 marzo 2010.
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