ORDER NO. 81
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA
Judges: Franco MODUGNO, Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D'ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has issued the following
ORDER
in the proceedings concerning the constitutional review of Article 12, paragraph 4-bis, of Presidential Decree No. 602 of 29 September 1973 (D.P.R. 29 September 1973, No. 602) (Provisions on the Collection of Income Taxes), as added by Article 3-bis of Legislative Decree No. 146 of 21 October 2021 (Urgent Measures in Economic and Fiscal Matters, for the Protection of Labour and for Urgent Needs), converted, with amendments, into Law No. 215 of 17 December 2021, referred by the Justice of the Peace of Milan, First Civil Section, in the proceedings between C. C. and the Revenue Agency – Collection, with Order of 1 June 2023, registered at No. 135 of the Register of Orders 2023 and published in the Official Gazette of the Republic No. 42, First Special Series, of the year 2023.
Having seen the joinder of C. C.;
Having heard at the public hearing of 5 March 2024 the Reporting Judge Luca Antonini;
Having heard counsel Giovanni Battista Conte for C. C.;
Having deliberated in chambers on 5 March 2024.
Considering that, by Order of 1 June 2023, registered at No. 135 of the Register of Orders 2023, the Justice of the Peace of Milan, First Civil Section, raised, with reference to Articles 3, 24, 77, 111, 113 and 117 of the Constitution, questions of constitutional legitimacy of Article 12, paragraph 4-bis, of D.P.R. No. 602 of 29 September 1973 (Provisions on the Collection of Income Taxes), as added by Article 3-bis of Legislative Decree No. 146 of 21 October 2021 (Urgent Measures in Economic and Fiscal Matters, for the Protection of Labour and for Urgent Needs), converted, with amendments, into Law No. 215 of 17 December 2021;
that the provision stipulates that "[t]he tax assessment extract is not subject to appeal. The tax assessment and the payment notice allegedly invalidly notified are subject to direct appeal only in cases where the debtor who brings the action demonstrates that the registration to the tax assessment may result in prejudice to their participation in a tender procedure, pursuant to Article 80, paragraph 4, of the Public Contracts Code, as per Legislative Decree No. 50 of 18 April 2016, or for the collection of sums owed to them by public bodies as per Article 1, paragraph 1, letter (a), of the regulation pursuant to the Decree of the Minister of Economy and Finance No. 40 of 18 January 2008, due to the verifications provided for in Article 48-bis of this Decree, or finally for the loss of a benefit in relations with a public administration";
that, in point of fact, the referring court states that these questions arose during opposition proceedings to enforcement brought pursuant to Article 615 of the Code of Civil Procedure, with a writ of summons in which the taxpayer claimed to have learned, by consulting the tax assessment extract, of the existence of four unpaid tax bills against him, with the relevant notification dates indicated, but in reality "never came to his knowledge or were otherwise affected by irremediable defects", relating to penalties "for violations of the Highway Code";
that, on the point of relevance, the referring court believes, in particular, that "the issue is of great relevance both for the considerable pending litigation [...] and for the doubts that arise in light of the solution suggested by the Supreme Court *en banc* regarding the retroactive effect of a provision enacted by means of emergency decree";
that, as regards the lack of manifest unfoundedness, the referring court believes, firstly, that there would be a conflict with Article 3 of the Constitution for violation of the principle of equality, as the typification established by the challenged provision of the cases for which the appeal of the tax assessment and the payment notice has been admitted would be "rather restrictive and would discriminate against all taxpayers who do not operate with the public administration but who suffer prejudice from the registration of the tax debt";
that there would also be a violation of Article 24 of the Constitution for infringement of the right of defence, as the new provision, on the one hand, "by adhering to the statutory provision, would prevent the taxpayer from freely accessing the courts in the presence of errors by the Tax Administration", postponing it "to a time subsequent to the emergence of the interest to act and therefore to a time when it is possible that some harmful effects of the act may already have occurred"; on the other hand, it would deny "the right of everyone "to a fair trial" reserving it only to those who have dealings with the public administration";
that the referring court also points out the violation of Article 77, paragraphs one and two, of the Constitution, as, on the one hand, the challenged provision would have been "enacted in the absence of the requirement of specific necessity and urgency", and, on the other, "[i]n the case in point, the Government, without delegation from Parliament, issued Legislative Decree No. 146/2021 without any enabling act" although the challenged provision "governs a matter, such as justice and access thereto, which is reserved to the normative power of Parliament";
that, furthermore, according to the referring court there would be a violation of Articles 111 and 113 of the Constitution, as the challenged provision would have "introduced into the legal system a benefit solely and exclusively in favour of the Public Administration", precluding "the taxpayer's right of defence, restricting it to only three specific cases always exclusively within the purview of the Public Administration";
that, finally, according to the referring court the challenged provision would conflict with Article 117 of the Constitution, as "doubts arise regarding the adoption of urgent measures of tax justice in the absence of an enabling act by means of a Legislative Decree", so that "paragraph 4-bis added to Article 12 of the aforementioned D.P.R. 602/1973 appears illegitimate for having been unconstitutionally introduced by means of an emergency decree";
that by document filed on 30 October 2023, C. C., a party in the referring proceedings, entered an appearance, arguing on the relevance of the questions of constitutional legitimacy and requesting their acceptance, highlighting that judgment No. 190 of 2023 of this Court would have "expressly acknowledged the existence of a *vulnus* resulting from the challenged provision" relating to the judicial protection of the taxpayer and that it would have worsened over time;
that therefore this Court would be required to "(again) intervene in the matter", adopting, this time, "an *additiva* judgment of principle", since the invitation addressed to the legislature to remedy the identified *vulnus* has had no effect and, therefore, "the legislature's inertia [...] requires a new intervention in the matter by the constitutional judge";
that the party filed a further submission reiterating the arguments contained in the joinder;
that the President of the Council of Ministers did not intervene in the proceedings.
Considering that the referring court points out that the questions raised on Article 12, paragraph 4-bis, of D.P.R. No. 602 of 1973, as added by Article 3-bis of Legislative Decree No. 146 of 2021, as converted, with reference to Articles 3, 24, 77, 111, 113 and 117 of the Constitution, arose during opposition proceedings to enforcement brought pursuant to Article 615 of the Code of Civil Procedure, with a writ of summons in which the taxpayer claimed to have learned, by consulting the tax assessment extract, of the existence of four unpaid tax bills against him;
that, in justifying the relevance, the referring order, similarly to that registered at No. 95 of the Register of Orders 2023, whose questions were declared inadmissible by this Court in judgment No. 190 of 2023, merely alleged, in a completely generic and detached manner from the facts of the case, that "the issue is of great relevance both for the considerable pending litigation [...] and for the doubts that arise in light of the solution suggested by the Supreme Court *en banc* regarding the retroactive effect of a provision enacted by means of emergency decree", without providing any clarification on the actual validity or otherwise of the notifications made by the Revenue Agency – Collection (ADER);
that the only reference to the notifications is, moreover, contradictory, since, on the one hand, the taxpayer's defences are referred to regarding the existence of the four tax bills "never came to his knowledge or were otherwise affected by irremediable defects", relating to penalties "for violations of the Highway Code";
that, however, on the other hand, the ADER's argument is reported that it had "duly notified the aforementioned tax bills";
that the referring court should have indicated the specific methods used for the notification of the aforementioned tax bills, clarifying whether or not they were duly effected;
that, in fact, the ascertained possible validity of the notifications of the tax assessments would have entailed the irrelevance of the questions raised;
that such a description of the specific facts, entirely insufficient, makes it impossible to verify whether the challenged provision must actually be applied to define the main judgment and whether the reasons given in support of the doubts of constitutional illegitimacy have any relevance to the specific case subject to the same judgment;
that this insufficient description results in an irreparable gap in the reasoning on the relevance of the questions (ex plurimis, judgments No. 28 of 2022, No. 114 of 2021 and No. 254 of 2020);
that, in any case, this Court, in the aforementioned judgment No. 190 of 2023, has specified that the "remedy to the situation that has arisen as a result of the challenged provision involves, however, aspects left – as regards the forms and methods – to the discretion of the legislature and does not fall, at least initially, to this Court";
that in relation to the "essential need to ultimately overcome the serious vulnerability and inefficiency, also with reference to the notification system, which still afflicts the Italian collection system", the aforementioned judgment also formulated the "urgent hope", which cannot but be reiterated here, "that the Government effectively implements the principles and guidelines for the revision of the national collection system contained in the delegation conferred upon it by Article 18 of Law No. 111 of 9 August 2023 (Delegation to the Government for tax reform)";
that, therefore, the questions raised with reference to Articles 3, 24, 77, 111, 113 and 117 of the Constitution must be declared manifestly inadmissible.
For these Reasons
THE CONSTITUTIONAL COURT
declares the manifest inadmissibility of the questions of constitutional legitimacy of Article 12, paragraph 4-bis, of D.P.R. No. 602 of 29 September 1973 (Provisions on the Collection of Income Taxes), as added by Article 3-bis of Legislative Decree No. 146 of 21 October 2021 (Urgent Measures in Economic and Fiscal Matters, for the Protection of Labour and for Urgent Needs), converted, with amendments, into Law No. 215 of 17 December 2021, raised, with reference to Articles 3, 24, 77, 111, 113 and 117 of the Constitution, by the Justice of the Peace of Milan, First Civil Section, with the Order indicated in the heading.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 5 March 2024.
Signed:
Augusto Antonio BARBERA, President
Luca ANTONINI, Reporting Judge
Roberto MILANA, Director of the Registry
Filed with the Registry on 9 May 2024
The Director of the Registry