parimatch bet
The D.L. n. 223 of 2006 (converted into law no. 248 of 4 August 2006, better known as the “Bersani decree”), in article 35, paragraph 24, established that the Consolidated Law on registration tax provides, for the “newly introduced “Art. 53 bis, the following legislative provision: “the attributions and powers referred to in articles 31 and following of the decree of the President of the Republic of 29 September 1973, n. 600, and subsequent amendments, may also be exercised for the purposes of registration tax “. On closer inspection, with this amendment, for the agreements subject to the tax of the register starting from 12 August 2006 (date of entry into force of the article in reference), the offices of the Financial Administration are expressly granted the power to use, also for the purposes of the register (in fact), the legislative provisions contained in articles 31 et seq. of the Presidential Decree n. 600 of 1973; among these, of course, also the art. 37 bis, which is the only true anti-avoidance rule existing in our tax system. At this point, there is no one who does not see how the express recognition by the legislator of the possibility of resorting to the specific legislation referred to in the aforementioned article 37 bis, also for the purposes of the register, is inevitably accompanied by the clear and irrefutable certainty that, before then, that is, before the introduction of art. 53 bis of the Presidential Decree n. 131 of 1986 (following the “Bersani” reform), no “typically” anti-avoidance power could be exercised by the tax authorities with reference to this tax. Although this represents an “epochal” legislative novelty, with overwhelming effects, not only on the future rectification activity but also on that up to now carried out by the offices of the Financial Administration, the legislative novel in reference has gone completely “unnoticed”, contrary to what one would have expected. Yet, especially as regards the dispute still pending, regarding registration tax, the change in reference is of absolute importance. The all too “extensive” interpretation of art. 20 of the Unified Text of the register. Up to now, the Tax Administration has tried to oppose the possible evasive practices regarding the registration tax, making its own and supporting with extreme conviction a thesis that, to most, immediately seemed impracticable and completely unreliable. In fact, the offices of the Inland Revenue, “clinging” to the regulatory data contained in art. 20 of the Unified Text of the register, argued that it was in their power to determine the tax levy relating to a specific agreement (subject to registration), on the basis of the purpose actually pursued by the contracting parties, which can be found, pursuant to art. 1362, also through the investigation of deeds preceding and/or subsequent to the one specifically subjected to tax. On closer inspection, the tax authorities, “regardless” of the fact that the register constitutes a typical “deed tax” and that art. 20 in question was introduced for the sole purpose of allowing the taxation of the legal effects of the act brought to registration, it has arrogated the right to transcend what is in its power, resulting, in practice, in the “transformation” of the aforementioned article 20 into a true “anti-avoidance” provision, typical of the registry system. In doing so, the financial administration offices have gone far beyond what is foreseen by the relevant legislation, arriving, however, at the taxation of the deeds subject to registration on the basis of the economic effects attributable to them, contrary to the philosophy of the tax register, solely aimed at subjecting the “only” legal value of each “single” act to taxation. Yet, the fact that, according to art. 20, the deed subjected to the register must be interpreted solely with reference to the clauses contained therein, without any reference drawn, would seem a fact, by now, peacefully established. And this, not only by virtue of the unequivocal wording of the law in question; but also by virtue of its “historical” origin. In fact, a provision similar to that contained in the aforementioned article 20 was contained in the previous text of art. 8 of the Royal Decree n. 3269/1923, which provided that “taxes are applied according to the intrinsic nature and effects of the deeds or transfers, even if the title or apparent form does not match”. A heated doctrinal controversy arose around this rule, between those who believed that it presupposed the taxation of acts according to their “economic” effects (so-called Scuola Pavese), and those who, on the other hand, argued that, given the clear nature of the tax in question (“deed” tax), this rule could only refer to the “legal” effects of the deeds subject to registration. It was the Legislator himself, by means of art. 19 of the Presidential Decree n. 734 of 1972 (current art. 20 of Presidential Decree no. 131 of 1986), to resolve this conflict, establishing, definitively, that this type of tax should be understood exclusively as referring to the legal effects of the deeds. This means that Article 20 presupposes the application of the tax according to the intrinsic nature of the single act submitted for registration and its legal effects, while it does not allow for an overall interpretation of several acts in order to legitimize the application that takes into account the “economic” situation arising from the “sum” of the same. Moreover, even in legal literature, it has always been, and unanimously, held that as a “deed tax”, the correct application of the tax from the register requires the evaluation of the single and “single” deed subjected to registration, categorically excluding, which can be transcended from the content of the contractual agreements contained therein, in order to identify the effective economic of the contracting parties, “trespassing” from a mere interpretative activity to real anti-avoidance activity, certainly not regulated by art. 20 in question. Judicial practice, especially in the field of legitimacy, has not been so firm in interpreting the normative text of the article. 20 Decree of the President n. 131 of 1986, in some cases even going so far as to legalize the refund of taxes, which, although based on this rule, led to the taxation of the “economic” consequences of a particular act, which were revealed by examining additional and various agreements that occurred in subsequent moments (ex multis, Cass., n. 14900 of November 23, 2001). However, the recent arrests of high-ranking judges give us “hope” to rethink the scope of interpretation of the rule in question. In fact, the supreme judges were able to repeat that the tax on registration is called and should be understood as the “tax on deeds”, returning to the line of interpretation according to which Art. 20, which states that “the tax is applied in accordance with the intrinsic nature and legal consequences of the documents submitted for registration, even if the name or apparent form does not match”, it should be understood in the sense that the office has the right to seek the actual will of the parties on the basis of all the elements – but only from them – that result from a single act to be registered. Special mention deserves sentence no. No. 4220 dated February 24, 2006. In it, in fact, the Supreme Court has perfectly photographed the true essence of the registration tax, establishing, with reference to art. 20, that “The law, therefore, requires taking into account the nature and effects of the single deed presented for registration. The subsequent “corrections” that involve, as in the present case, a different destination of goods, in terms of legal effects, integrate and complete the original deed. But on the negotiating level they constitute new (separately taxable) acts that modify the legal effects of the first act, which retains full autonomy “. On closer inspection, with this ruling the Supreme Court seems to have again aligned itself with that teaching according to which “the act must be taxed on the basis of its intrinsic nature and the effects (even if not corresponding to the title and apparent form) to be identified through the interpretation of the negotiating pacts, according to the general rules of hermeneutics, with the exclusion of the elements that can be deduced”. 2. The reasons for the “hermeneutic confusion” that characterized the application of art. 20. Probably, at the origin of the retro-cited jurisprudential contrasts there is a “confusion” of an ontological nature, in the sense that the top judges, in supporting the “broad” interpretation that the Treasury has given of the aforementioned article 20, have come to accept a claim that, despite having the appearance of an anti-avoidance recovery (although based on a provision of law that does not legitimize this kind of practice), in reality it was born and took the form of a real “requalification “Of the contractual agreements taken into consideration; and as such it should have been evaluated. Moreover, it is clear that the tax authorities could not carry out an anti-avoidance recovery, similar to that which can be exercised for the purposes of direct taxes, based on art. 37 bis of the Presidential Decree n. 600 of 1973, given that, for the registration tax (at least until the intervention of the “Bersani decree”), a provision corresponding to the aforementioned article 37 bis did not exist. Authoritative doctrine (R. Lupi), in indicating the distinction between simulation phenomena and contractual redevelopment, stated that the redevelopment of contracts “differs from simulation because it does not refer to cases in which the taxpayer manifests a contract other than the one desired ( and kept hidden) and where therefore there is an apparent will different from an actual will, contained for example in a counter-declaration. The redevelopment concerns taxpayers who have legally incorrectly classified the conduct actually put in place, in order to benefit from a more advantageous tax regime “. This definition, certainly correct, makes it particularly clear how narrow is the boundary that divides the case of contractual redevelopment from the phenomenon of avoidance. Notoriously, it is legitimate to speak of elusive conduct if the taxpayer “circumvents” a possible tax law, giving rise to one or more statutory and effective acts or negotiations, albeit in an atypical or anomalous function, in order to obtain a substantial economic result equivalent to that of the different act or transaction assumed by the law as a prerequisite for taxation, and thus avoiding integrating the extremes from a juridical – formal point of view. In practice, in circumvention, we are not limited to choosing one of the alternatives offered by the legal system, but we are artfully constructing an advantageous regime that, although apparently lawful, is distorting, and therefore disapproved from a systematic point of view. In order for such conduct to be prosecuted by the tax authorities, however, there must be a specific provision of law that legitimizes the tax recovery of the tax deductible from the “substantial” circumvented legal transaction; in the absence of such a rule, any hypothetical attempt to carry out such recovery must be considered illegitimately and unduly carried out. Within our tax system, there is only one true anti-avoidance rule, namely art. 37 bis of the Presidential Decree n. 600 of 1973, which, at least up to the “extension” introduced by the “Bersani Decree”, was applicable only for the purposes of direct taxation and only if the parties had carried out one of the types of negotiation typified therein. At this point, it is obvious that the Treasury, for cases not covered by the aforementioned article 37 bis, including attempts to avoid the registration tax, could only “fall back” in the practice of negotiation redevelopment. However, the latter, precisely because it is not expressly regulated, is certainly less easy to travel. In fact, while to counter elusive practices, in the presence of a specific rule, it is possible to focus only on the “objective” examination of the agreements that have taken place, it being sufficient to argue the reasons why the concatenation of the documents under examination suggests the underlying existence of an elusive intent; where the office claims to redevelop certain contracts, lawful as they are expressly provided for by our legal system, it must transcend the mere objective data, entering into the evaluation of the “subjective” implications of the agreements it intends to redevelop, offering, however, particularly rigorous probative arguments, precisely because they aimed at “unmasking” the actual will of the parties, hidden behind those agreements stipulated with the sole intention of not realizing the contractual figure actually desired, but fiscally more onerous.In practice, what mainly distinguishes avoidance from redevelopment is the probative aspect; in the case of redevelopment, since the negotiating will of the parties is called into question, manifested in the form of absolutely lawful agreements and regulated by our regulatory system, it is necessary that the tax authorities offer evidence such as to be able to effectively demonstrate, with a high degree of certainty, that the agreements between the parties were true “formally” desired, but for the sole purpose of avoiding the negotiating figure which they “substantially” aimed at since they were more tax-burdensome. It is clear that proof of this kind is by no means easy to provide; and it is certainly less easy than the application of an anti-elusive rule, which only requires an objective investigation of the agreements on which the elusive “stratagem” is believed to have been “built”. 3. The improper use of art. 20 as an “anti-avoidance” rule for the purposes of the register and the definitive clarification offered by the newly introduced art. 53 bis. The fact is that, in many circumstances, such as those, examples, examined in the rulings referred to above, tax claims were deemed worthy of acceptance, instead of being based on evidence such to be able to justify a contractual redevelopment (i.e. investigative elements from which the “will” to carry out a formally not manifested contract was proven), were based on data having an exclusively “objective” relevance, and, therefore, as if it were a tax recovery carried out in application of a typical anti-avoidance rule. This, in practice, has led to the acceptance of tax claims made according to procedures not legitimized by the law, and unduly justified through a distorted interpretation of art. 20 of the Unified Text of the register, “distorted” from a mere interpretative rule to a real anti-avoidance provision. All this, following the introduction of the aforementioned art. 53 bis, should no longer happen, as it can now be considered definitively established that, starting from the assumption that art. 20 of the Consolidated Law on registration tax limits itself to indicate that the single deed subject to taxation, being that of the register a deed tax, must be interpreted according to the legal effects deriving from the individual agreements contained therein, and no relevance, for this purpose, it can be recognized in alienated elements: A) in the period before art. 53 bis, if it believed that underlying the registered deed there was the effective will of the parties to carry out a different type of negotiation, but “formally” not manifested, only because it was fiscally more onerous, in the absence of a specific anti-avoidance rule, the office could only operate the so-called contractual requalification, provided that they possess particularly relevant investigative elements, that is, not limited to mere “objective” allegations (such as, for example, the time lapse between two allegedly connected contractual agreements), but such as to be able, concretely, to demonstrate that the real will of the contracting parties was to carry out another type of contract, not expressly put in place, for purely fiscal reasons (the reference is to those investigative elements which, transcending the mere objective aspect, are able to highlight the aspect more properly “subjective” of the negotiation affair); B) with the introduction of art. 53 bis, and with reference to the agreements entered into with effect from 12 August 2006, the offices of the financial administration will be able to carry out tax recoveries of a typically anti-elusive nature, applying the legal case referred to in art. 37 bis of the Presidential Decree n. 600 of 1973, by virtue of the clear and unequivocal reference contained in the aforementioned art. 53 bis, based, therefore, even “only” on objective findings. It goes without saying, of course, that, according to what is definitively “clarified” by the amendment in question, for disputes that have arisen (or that will arise) and which have as their object tax claims related to agreements made before 12 August 2006, that is, before the ‘entry into force of art. 53 bis, where the office wishes to retrain the parties’ negotiating will, it is evident that the same will have to provide particularly convincing and incisive probative arguments, evaluating the more strictly subjective aspect of the negotiation case verified, not being able to limit (as, in the past, very often happened) to the allegation of mere “objective” findings, useful only in a hypothetical recovery of an anti-elusive nature, now clearly inoperable with reference to the agreements (which occurred prior to 12 August 2006). (Dr. Fabrizio Dominici – Lawyer Fabio Falcone)