The external judgment trap and applicability to the tax process
July 02, 2024
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The final judgment also stands between the same parties for different annuities.
This is the principle of law resulting from the current orientation of the Supreme Court, to which one must pay close attention when deciding not to appeal a judgment on the merits. In fact, the same, once res judicata, is fully capable of making status with express reference to the same cases already decided by a judge. With consequent non-reversible effects if one intends to rediscuss subsequent annuities characterized by the same case in point.
Of the same tenor are some pronouncements of the case law on the merits; see, pro multis, Judgment 3078/2023 issued by the Lombardy Second Instance CGT, which ruled as:
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deserving of acceptance is, indeed, the plea of external res judicata, re-proposed in the appeal by the taxpayer: with numerous judgments that do not appear to have been appealed by the Office, with reference to tax years prior to the one under discussion, produced at first instance by the taxpayer and concerning the tax years 2002, 2006, 2011, 2013 and 2014, respectively), as well as most recently the one produced in the appeal, and issued by the Tax Court of 2nd instance of Lazio concerning the year 2012, which have uniformly recognized the deductibility of the charges in dispute. Well, these decisions, although relating to tax years prior to the one under discussion, make status, between the parties also with reference to the subsequent years still sub iudice, in the light of the interpretative orientation expressed in this regard by the Court of legitimacy, according to which in relation to periodic taxes, the binding effect of the external judgment, formed on some annuities, is produced with reference also to different annuities, in relation to those facts that constitute constituent elements of the case with a tendentially permanent character, or facts integrating constituent elements of the case that, extending to a plurality of annuities have a stable or tendentially permanent character
It follows, therefore, unequivocally, that the criterion of the autonomy of tax periods, now obsolete and outdated, can never prevent, contrary to what has been argued in recent years by the Offices, that the judgment relating to one of them, also makes status for the others; obviously, if and when it relates to constituent elements or legal qualifications of facts unchanged.
Ergo, in the presence of an identity of the causa petendi and petitum, of a tax obligation brought before the court that has the same constituent elements (prerequisites) and a procedural claim based on the same. Without prejudice to the right to object to any intervening mutant, in fact or in law.
However, the scope is as broad as possible; the exception about the intervening formation of res judicata can be raised for the first time in the Supreme Court and is also discoverable ex officio.
This is also in view of the nature of the tax process, which is understood as a judgment not on the act but on the relationship, and the fact that the judgment is formed on the issues and not on the acts.
Ultimately, the Milan Court of Justice, having taken note of what happened in reference to the previous years, which were fully and consistently re-proposed in the records by the interested taxpayer, could only rule that the party’s grievance be upheld, finding it even absorbing.
Lastly, the further element of absolute novelty and universal scope, of the case dealt with, consists in the circumstantial relevance attributed to the previous administrative behavior and practices held by the Offices; in the presence of the same situations and objective qualifications, in fact, again with reference to previous years, even (i) the mere absence of outcomes resulting from a 36-ter DPR 600/73 control, (ii) the intervening recognition of the reimbursement of amounts unduly paid on application pursuant to art. 38 Presidential Decree 602/1973 (undue payment) or as a result of proceedings instituted pursuant to Article 17-bis 546/1992 (complaint/mediation; now repealed), must be understood as constituent elements of the potential intervening formation of the external judgment; all following an all too manifest acquiescence of the other party, in terms of reasons of law, as well as, by logic, of merit.
Dr. Paolo Gelao
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