The declaration of foreign financial assets is a matter of considerable importance in the Italian tax system. This provision aims to ensure control over currency movements and, consequently, over the taxpayer’s ability to contribute.
In its recent ruling no. 28077/5 of 2024, dated 30/10/2024, the Court of Cassation established that the failure to fulfill the obligation should not be regarded as a mere formal violation, but rather as a substantive offense with direct implications for the tax monitoring system.
The regulatory framework
It is worth noting that Article 4 of Law Decree no. 167 of 28 June 1990 initially established the obligation to declare foreign investments for taxable entities as defined by the same article, including individuals.
Paragraph 2 of the same article established the obligation to indicate in the tax return the amount of transfers to, from, and within foreign countries that, during the year, involved foreign investments and financial activities abroad. The violation of this obligation is penalized under Article 5, paragraph 5. Sanctions range from 5% to 25% of the undeclared amount.
The case examined by the Court
In ruling no. 28077/2024, the Court of Cassation dealt with a case where a taxpayer failed to complete section RW of the income tax return for the years 2005-2008, omitting to declare foreign assets.
According to the taxpayer’s defense, it was merely a formal violation, as it did not cause any harm to the Treasury. However, the Court rejected this argument, emphasizing that the failure to declare cannot be considered a simple formal irregularity. Instead, it is an act that undermines the effectiveness of the tax control system. Therefore, this violation is considered substantial and relevant for sanctioning purposes.
The Court’s reasoning
The Court emphasized that the obligation to declare foreign financial assets addresses a fundamental need for transparency and monitoring of financial flows. The underlying purpose of the legislative provision is to prevent the concealment of capital and ensure the correct application of taxes owed, regardless of whether the omission causes immediate harm to the Treasury.
The comparison with European jurisprudence
The ruling also rejected references to the case law of the Court of Justice of the European Union. In particular, it dismissed the case C-788/19, Court of Justice, 27/01/2022, European Commission/Kingdom of Spain, in which the disproportionality of the sanctions imposed by Spanish legislation was challenged.
The Court of Cassation reiterated that, unlike the Spanish regime, Italian legislation provides for proportional sanctions, ranging from 5% to 25%, and applied at the minimum level when appropriate, thus excluding a direct analogy with European Union case law.
Correspondence between what is requested and what is ruled upon
Another relevant aspect of the ruling is the reference to the respect for the principle of correspondence between what is requested and what is ruled upon. The Court emphasized that, in tax proceedings, the judge must limit their decision to the specific grounds raised by the parties, without extending their assessment to issues that have not been raised. This principle ensures that the litigation remains confined to the claims and objections actually presented.
The practical implications
This ruling has significant implications for Italian taxpayers. The principle established clarifies that the failure to declare foreign financial assets cannot be underestimated or treated as a mere formality without consequences. The omission not only exposes the taxpayer to substantial penalties but also highlights the need for a rigorous approach in managing one’s tax returns.
For more information on tax declarations, consult our guide on tax return in Italy.