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It happens to witness, in the reasoning of tax judges who reject the taxpayer's defensive argument, the laconic statement that “the events of the criminal trial are not relevant in the tax proceedings by virtue of what is known as the so-called double track between criminal proceedings and tax proceedings” (statement taken from a judgment of a regional tax commission, editor’s note).
The principle of the “double track” is contained in art. 20, Legislative Decree no. 74/2000, which states: “The administrative assessment procedure and the tax proceedings cannot be suspended due to the pendency of criminal proceedings concerning the same facts or facts whose assessment is in any case necessary for the relevant definition”.
On this matter, case law had developed (Cass., 2856/2008, 8129/2012, etc.) according to which, in reality, this principle should be interpreted in the sense of considering the two proceedings and the decision-making powers of the two different judges as independent; however, when the material facts constituting the criminal and tax offense are the same, if, during the tax proceedings, a final acquittal judgment is issued because the fact does not exist, the criminal judgment is a “document” that can be produced in the tax proceedings and which the latter is obliged to analyze in order to justify its own conviction, without the obligation—obviously—of considering it as res judicata, simply for the evaluation of the evidence carried out in the criminal proceedings.
On the subject, that is, on the “relevance to be given, in tax proceedings, to the criminal res judicata that has occurred during the case”, the order of the Court of Cassation no. 25632 of 22 September 2021 has now intervened.
In essence, since in that case the facts on which the criminal judge ruled, with a final judgment, were the same as those disputed in the tax proceedings, according to the Supreme Court “the finding of fact, made in the criminal proceedings, binds the civil judge”.
Exactly so: if in the criminal proceedings there was an acquittal because the alleged fact does not exist, and this fact is the same as that which formed the basis of the tax assessment (for example, the recording of an invoice for a non-existent transaction on one hand and the re-taxation of the cost on the other), we are in the presence of the so-called external res judicata and, according to the order briefly commented on here, “the exception of external res judicata is not subject to preclusions as regards its allegation on the merits since it is independent of any dispositive will of the party and, in consideration of its public relevance, it can be raised ex officio”.
The reader will then ask, when can such an acquittal be produced in the tax proceedings? The answer was provided directly by the Court of Cassation: since the external res judicata serves the public interest of eliminating uncertainty in legal situations and making decisions stable, it is not an “exclusive asset of the parties” and the (tax) judge, who becomes aware of its existence, is not bound by the position taken by the parties to the proceedings, “having to proceed to its consideration and evaluation ex officio, at any stage and level of the proceedings”.
It follows, ultimately, that “It must ... be denied that the production of a final criminal judgment produced by the party is subject to procedural preclusions, as it may be acquired, and used for the decision, even ex officio”. Moreover, the court of legitimacy concludes, “it would indeed be improper to require the party to anticipate its defenses in relation to a criminal judgment that has not yet been pronounced”.
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