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The assessment and collection of taxes are areas that are characterized, first and foremost, by forfeiture deadlines: as long as a forfeiture deadline is pending, the limitation period does not begin to run
because the completion of the activity required under penalty of forfeiture is the condition for exercising the right, which consequently becomes subject to a limitation period.
More simply, once the activity required under penalty of forfeiture has been carried out, the limitation period for exercising the right begins to run.
This is confirmed by the nature of forfeiture and the main feature that distinguishes it from prescription: in forfeiture, the “subjective conditions that led to the useless lapse of the deadline” are irrelevant (A. Torrente and P. Schlesinger, Manuale di Diritto Privato, Giuffrè Editore, Milan, 2011, p. 227) and the deadline is not subject to interruption. The provision of a forfeiture deadline ensures that the taxpayer is not and cannot be subject to the action of the Offices indefinitely over time.
It can therefore be stated that the tax administration, where it must carry out an activity within a forfeiture deadline—for example, the notification of the payment notice—must act in compliance with the forfeiture deadline set by the legislator; if it complies with this deadline, that is, in the example given, if it notifies the payment notice in a timely manner with respect to the forfeiture, then it may subsequently exercise its right, which this time will be subject to the limitation period.
Once the relationship between forfeiture and prescription is reconstructed in this way, that is, the moment when the two periods begin to run, it is possible to focus attention on what is, in fact, the limitation period for a tax.
Starting with Irpef, Irap, and VAT, it should—the conditional is necessary—be the case that Article 2946 of the Civil Code applies, i.e., the ten-year limitation period.
In reality, for everyone, the applicability of the general limitation rules is not so clear-cut.
The problem arises based on two different but, at the same time, interconnected considerations: on the one hand, the view that taxes could be considered periodic payments under Article 2948, no. 4, Civil Code, and therefore subject to the “short” five-year limitation period; on the other hand, the applicability of Article 2953, Civil Code, which governs the so-called actio iudicati, i.e., the conversion of the limitation period in the event of a final judgment.
Let’s start with the first: can taxes be considered periodic payments under Article 2948, no. 4, Civil Code, or are they institutions for which the ordinary limitation period applies pursuant to Article 2946, Civil Code?
What can be said for certain is that, in the matter of local taxes, the case law of legitimacy has now consolidated in considering the five-year limitation period applicable because these are real periodic payments, since the taxpayer-user is required to pay periodically a sum which, although authoritatively determined, constitutes the consideration for a service rendered to or requested by him (for example, the granting of public land) or imposed (for example, waste disposal tax).
But how does one move from the five-year limitation period for a tax-periodic payment to the short limitation period for state taxes (and, in general, for any tax)?
The conceptual effort to bring every tax under the category of periodic payment has been aided, so to speak, by the apparent misunderstanding that has arisen regarding the applicability of Article 2953, Civil Code, to the matter of tax collection.
Following judgment no. 23397, issued by the United Sections of the Court of Cassation on November 27, 2016, an interpretative trend has developed, even in the case law of legitimacy, according to which the limitation period for any tax would be the “short” one under Article 2948, no. 4, Civil Code, because, in the event of failure to challenge the collection act, the conversion of the short limitation period into the ordinary one would be excluded, i.e., Article 2953, Civil Code, would not apply to final administrative measures (see Cass. nos. 930/2018 and 1997/2018).
In reality, on closer inspection, the aforementioned 2016 United Sections ruling had in no way stated such a thing; on the contrary: issued in a context where the matter was indeed characterized by a five-year limitation period (i.e., the social security matter), the United Sections stated that the finality of an administrative measure due to failure to challenge it is a situation not comparable to that of the final judgment confirming the legitimacy of the challenged administrative measure, extending the principle of the inapplicability of the conversion of the short period to cases where a collection act became final not by a final judgment, but by failure of the recipient to challenge it.
Thus, by considering that the failure to challenge the payment notice triggers the ten-year limitation period under Article 2953, Civil Code, it has been argued that even state taxes are subject to a five-year limitation period.
It is not acceptable to consider any tax as a periodic payment, since taxes, unlike private law revenues, are characterized by enforceability, not by synallagmaticity (F. Tesauro, Istituzioni di Diritto Tributario, Parte Generale, Milan, 2016, p. 4) and are imposed by an act of authority: the tax is paid not by choice but by the occurrence of a normatively predetermined condition, unlike any contract for periodic services, where adherence is the result of a choice by the contracting party.
Moreover, even the issue of “periodicity” proves to be a source of misunderstanding, because in justifying the
periodicity of the tax, there is a risk of confusing the obligation to declare with that of payment/remittance: in the context, for example, of business income, the realization of a loss certainly creates the obligation to declare it but does not necessarily entail an obligation to pay (whereas it is clear that the obligation arising from a supply contract certainly does not depend on the income conditions of the contracting party).
The same applies to “borderline cases” such as the consortium contribution for reclamation works, the liability for which is, of course, subject to the occurrence of a condition, which must be verified year by year (id est for each tax period).
In reality, income taxes and VAT can be defined as “periodic taxes” because they are based on a situation that extends over time, so a set of facts occurring within a given time frame is legally relevant, while other taxes, such as registration tax, can be defined as “instantaneous” because they are based on an instantaneous event (for example, a real estate purchase).
As can be seen, periodicity does not pertain to the “payment” and the association between this “conceptual” distinction (periodic/instantaneous taxes) and the periodic payments referred to in Article 2948, no. 4, Civil Code, is a stretch: being subject to tax is not left to the free choice of the taxpayer and the only periodicity that can be spoken of is that relating to the formation of the condition or, at most, the tax base).
This is why Irpef, Irap, and VAT are subject to a ten-year limitation period, pursuant to Article 2946, Civil Code.
It remains to be seen, briefly, why in the matter at hand the provision of Article 2953, Civil Code, is irrelevant. In reality, the reasons why Article 2953, Civil Code, is a rule extraneous to the tax system are many and can only be summarized here as follows: the tax judgment is not a judgment of condemnation as required by the code provision and enforced collection is not subject to the finality of the judgment (in fact, we speak of fractional collection pending judgment).
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