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Silent refusal on refund: burden of proof on the taxpayer

The Italian Court of Cassation has established that the burden of proof is on the taxpayer who appeals against the silent refusal of the refund application.

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The Supreme Court, through Order n. 27845 of October 3rd, 2023, established that, within the frame of the tax process, taxpayers who appeal to the silent refusal of the refund application have the burden of proving that the refusal is unlawful.

The case in object

The case concerned a litigation on a refund related to the reimbursement of the IRAP tax payed by a freelancer. In particular, the litigation resulted from the silent conduct of the financial Administration, the so-called silent refusal.

In the sentence, the Provincial Tax Commission (Ctp) granted the appeal and recognised the right to reimbursement, by recognising the arguments put forwards by the claimant. The taxpayer claimed that the tax was not due, since the profession in question was practiced without the assistance of external partners and without an autonomous organisation. The claimant’s arguments were based on the use of a leased vehicle, a mobile phone and two laptops.

The Regional Tax Commission (Ctr) intervened against the Ctp’s judgment, reversing the decision of the court of first instance and granting the appeal of the Revenue Agency. Indeed, the Ctr found that the autonomous organisation requirement had been demostrated, since the taxpayer availed himself of external partners on a significant and continuous basis.

The freelancer thus appealed this decision to the Court of Cassation, citing Art. 2 of Legislative Decree n. 446/1997. This article identifies the habitual practice of an autonomously organised activity for the production or exchange of goods, or the production of services, as tax assumption.

The burden of proof

The court of final instance did not recognise the validity of the arguments the freelancer had put forward. Indeed, the Court of Cassation clarified that the taxpayer had not been able to prove that he did not avail himself of the company in which he was a shareholder for the professional activity in object.

As defined by art. 7, c. 5-bis of Legislative Decree n. 546/1992, introduced by Law n. 180 of August 31st 2022:

“[…] The burden to provide reasons for the refund application is on the taxpayer, when it is not related to the payment of any amounts under contested investigation.”

Thus, it is the taxpayer’s responsibility to document and demonstrate the validity of the facts supporting the refund application. In this case, the taxpayer holds the function of agent, also in a substantive sense. On the other hand, the arguments with which the Administration disputes the validity of the facts indicated by the taxpayer represent a simple defence. As such, they are not subject to any procedural preclusion, except for the possible formation of res judicata.

Conclusions

To conclude, through this Order, the Court of Cassation has reiterated the already consolidated orientation on silent refusal litigations, by putting the burden on proof on the taxpayer. The applicant is thus responsible to demostrate that none of the hypothesis justifying the refusal are valid.

Regulatory Framework

Legislative Decree n. 546/1992, art. 7, c. 5-bis

Reference (Italian only)

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