[ad_1]
Within tax law, a very worrying legal phenomenon is emerging with some insistence that involves tax authorities and taxpayers: the manipulation of the rules inherent to the so-called burden of proof. In other words, illogical or impossible “ burdens of proof ” are attributed, in a completely incorrect way, to contributors. An example as recent as it is striking comes from Order 25501/2020 of the Cassation, which established that the shareholder of a company with a limited shareholder base must prove the opposite, also for non-deductible costs for the same company.
What is the burden of proof
Let’s go in order and first of all try to understand what the burden of proof is. Without using too technical terms, this concept defines one of the most important principles of civil process. To obtain the protection of a right, it is necessary to provide the court with the try out of what is said. That is, whoever asks the court for a conviction against third parties or a sentence that annuls a contract, or that proves the existence of a situation, must accompany any violation of their right with some evidence.
The aforementioned evidence will serve not only to clarify that your right exists. But they will also determine if there was illegal conduct of another subject, and if this behavior could, in some way, have infringed a right. Article 2697 of the Civil Code speaks of the distribution of the burden of proof in the tax relationship: “Whoever wants to assert a right before the courts must prove the facts that constitute its foundation“.
The position of the tax collector
The above is also valid in the case of Tax collector. That is, even the Tax Agency must provide proof of the facts constituting your claim. As pointed out The sun 24 hoursHowever, with the issuance of the appraisal, the administration assumes the position of creditor vis-à-vis the taxpayer. The most striking consequence is that the administration itself will play, in the courts, the role of a substantial actor on which the burden of proving the validity of its claim will fall.
In this case, the taxpayer can defend himself by attaching different facts – preventing, extinguishing, modifying – which he will then have the burden of proving. But the same taxpayer will propose an appeal against the tax deed to prevent said deed from being final. Therefore, in such a situation, “act” even if it will actually be limited to “to resist“, since promoting the action cannot result in the burden of having to prove the constitutive facts of a claim that is not its own.
Reverted charges
The point is that, in the presence of presumptive evidence, the principle that should place the burden of proof on the tax authorities is subverted. That is, it is reversed and, in the face of relative legal presumptions, these assign the burden of proof to the taxpayer.
Normally, the burden of proof should rest with the offices. However, very often there are judgments in which the burden of proof falls on the taxpayer, as is the case, for example, of the deductibility of costs in business income. The fact is that the latter almost always does not have the tools to prove anything, especially in the case of not having received the benefit.
