Disproportionate and harmless sanctions referred to the EU Court of Justice
Under scrutiny by the Luxembourg courts is the anti-avoidance provision of Decree 16 of 2012. The measure does not allow for the assessment of guilt or malice, nor does it allow for the assessment of fiscal damage
Disproportionate penalties even in contexts of total fiscal neutrality. The Court of Second Instance of Lazio, XIII section, referred to the EU Court of Justice for a preliminary ruling the compatibility assessment of the provision of Decree Law 16/2012 (Article 8, paragraph 2) that removes from the judge the measurement of the wilful misconduct or gross negligence of the taxpayer and also of the actual damage caused to the Treasury.
According to the Latium CGT, the automatism of the "anti-evasion" rule of 14 years ago - which survived the last reform season - "appears to be in contrast with the orientation of the Court of Justice (Farkas judgment, C-564/15) according to which EU law precludes sanctions that do not allow the judge to assess the individualisation of the penalty". In particular, European jurisprudence requires that the severity of the sanction be appropriate to the gravity of the violation on pain of disregarding Article 49 of the Charter of Fundamental Rights of the EU, turning the sanction into an excessive burden and manifestly disproportionate to the end pursued.
The maxi fine
At the centre of the dispute is the penalty of over 26 million applied by the Office on the assumption that the commercial transactions analysed were 'subjectively non-existent'. The peculiarity of the case lies in the nature of the contested transactions: these are in fact 'foreign-to-foreign' purchases and sales of oil products (purchase from non-EU supplier and resale to non-EU customer), which structurally benefit from the non-taxability of VAT on both the purchase and sales sides. In detail0 it concerned a purchase of 357,317 tonnes of fuel oil from an Iranian company for the equivalent of EUR 107,435,864 and the subsequent resale to a Turkish company for EUR 107,453,730, as shown by the two invoices issued by the first company.
Invoices of existing transactions
The plaintiff, assisted by Alessandro Dagnino and Antonino Calcò, emphasised the regular invoicing on both the passive and active side, as there was no corresponding financial movement. The payment to the Iranian company, in fact, had been made directly by the purchaser as agreed in advance between the three companies.
Collateral discoveries
According to the Revenue Agency, however, the purpose of the transaction would have been, among other things, to reduce the balance sheet values in order to credit the seller on the market, an argument dismissed by the counterparty as 'implausible' since 'any prudent large company would very easily notice, through the historical examination of the balance sheets, unjustified sudden escalations in turnover'. Moreover, according to the Office, the hypothesis envisaged by Article 8, paragraph 2, of Decree-Law 16/2012, "although it has no effect on the tax due by the taxpayer, constitutes a substantial violation, given the harm it causes to the Treasury and the high legal disvalue that derives from the registration in the accounts of costs and revenues for objectively non-existent transactions".
