Taxes, past checks at risk: here are the stakes set by the Court of Cassation

Two ordinances, two messages. On the one hand, the Supreme Court of Cassation refers to the Joint Sections a question that could sweep away thousands of tax assessments of the past: was the evidence collected by the tax authorities in violation of the company's domicile already unusable even before the law explicitly said so, in 2024 with the reform of the Taxpayer's Statute? On the other hand, while waiting for the answer, the same Tax Section dictates the practical criteria for determining when an audit on company premises is regular and when it is not.

The first front opens with the order filed on 11 May, president Lucio Napolitano, rapporteur Giuliano Tartaglione, on the case of a concrete company. The underlying scenario is the one opened by the European Court of Human Rights with the Italgomme and Agrisud sentences, which in 2025 condemned Italia for inspections authorised by the same administration that carries them out. For Strasbourg, the domicile protected by the Convention is not only the private home, but also the company's headquarters.

The Italia legislator responded by introducing Article 7-quinquies of the Taxpayer's Statute in 2024: evidence gathered in violation of the law cannot be used. However, the rule only applies for the future. And here the question arises: was that principle already alive in the system, derivable from Article 14 of the Constitution, or is it a novelty in 2024? The Section has an idea of its own - the principle already existed - but recognises that within the Supreme Court itself opposing readings coexist. Hence the referral. If the United Sections confirm, notices built on authorised accesses without a third-party control will risk collapsing even when they date back ten or fifteen years.

The second front is already living law. In an order filed on 20 April, president Angelina-Maria Perrino, rapporteur Tania Hmeljak, the Tax Section rejected the appeal of an amateur sports association (Asd) and set the operating criteria. Italgomme,' writes the Court, 'did not reject Italian legislation in the abstract, but assessed individual cases in concrete terms. An access passes the scrutiny if the authorisation is justified, the object is circumscribed, the time span contained, and the requests relevant. In the case of the amateur sports association (Asd), the inspection concerned only one tax year, took place over three days, and was aimed at ascertaining the nature of the activity. No trawling. The access holds.

The two measures form a coherent design. The first keeps the door open to retroactive protection. The second raises the threshold for access to it: it will not be enough to invoke Strasbourg to overturn an assessment, it will be necessary to demonstrate concrete arbitrariness. The floor now passes to the First President. If the United Sections go in the direction indicated by the Napolitano panel, the pool of assessments at risk will be significant. But - thanks to the filter designed by the Asd - it will not be the tide that some fear and others hope for. It will be a targeted blow, reserved for those accesses that today, reread with the eyes of Strasbourg, show signs of abuse.