Published on 30 June 2025
FIRST SECTION
Application no. 3715/23
Vincenzo LICIBERTO
against Italy
lodged on 3 January 2023
communicated on 12 June 2025
SUBJECT MATTER OF THE CASE
The application concerns the alleged violation of the principle of equality of arms and access to a court in judicial proceedings before tax courts, instituted by the applicant to challenge a tax assessment notice (avviso di accertamento) based on elements emerging from a tax audit carried out against a third party and not disclosed to the applicant.
The applicant is the sole shareholder of a company (ditta individuale) which, on 11 September 2015, was notified by the Tax Authority of Caserta (Agenzia delle Entrate) of a tax assessment notice. Making reference to the record of an audit carried out against another company, the Tax Authority found the applicant liable to pay taxes for revenues he had not declared. Tax surcharges and tax fines were accordingly imposed on him.
The applicant challenged the tax assessment notice before the Caserta Provincial Tax Commission, arguing that the abovementioned record did not mention at all the applicant, while the documents concerning the applicant allegedly found during the audit, on which the Tax Authority relied, had neither been reproduced in the record, nor had otherwise been disclosed to him. The Provincial Tax Commission allowed the applicant’s claim and declared the tax assessment notice null and void.
Upon appeal by the Tax Authority, the Naples Regional Tax Commission reversed the first instance decision, merely stating that the tax assessment notice referred to documents found during a tax audit carried out against a third person.
The applicant unsuccessfully appealed to the Court of Cassation (judgment no. 26010 of 5 September 2022). In particular, the Court of Cassation stated that the Regional Tax Commission had carried out a factual assessment regarding the existence of suitable presumptive evidence against the applicant, based on the documents found at the other company’s premises. In addition, it considered that the applicant had failed to comply with the formal requirements of the principle of the autonomy of the appeal on points of law (autosufficienza del ricorso in cassazione), since he did not transcribe or attach the content of the record against the third party from which the Court of Cassation could eventually assume the non-existence of the evidence in issue.
The applicant complains under Article 6 § 1 of the Convention of an infringement of the principle of equality of arms since the main evidence the Tax Authority relied on had never been made available to him. He further complains under the same Article of excessive formalism of the Court of Cassation’s decision in his case. Invoking Article 13 of the Convention he also argues that he had no effective remedy in relation to his complaint concerning equality of arms.
QUESTIONS TO THE PARTIES
1. Did the proceedings before the tax courts afford the applicant a fair trial in accordance with the criminal limb of Article 6 § 1 of the Convention? In particular, was the applicant given a reasonable opportunity to present his case under conditions that did not place him at a disadvantage vis-à-vis his opponent (see, Vegotex International S.A. v. Belgium [GC], no. 49812/09, § 139, 3 November 2022; Bendenoun v. France, 24 February 1994, § 52, Series A no. 284; Chambaz v. Switzerland, no. 11663/04, §§ 63-67, 5 April 2012; and Erduran and Em Export Dış Tic A.Ş. v. Turkey, nos. 25707/05 and 28614/06, § 111, 20 November 2018)?
2. Did the dismissal of the appeal by the Court of Cassation on the ground that the applicant had not complied with the principle of autonomy of the appeal on points of law (autosufficienza del ricorso in cassazione) impose a disproportionate restriction on the applicant’s right to a court, guaranteed by Article 6 § 1 of the Convention (see Zubac v. Croatia [GC], no. 40160/12, §§ 80-82, 87-89 and 96-99, and Succi and Others v. Italy, nos. 55064/11 and 2 others, §§ 71-95, 28 October 2021)?
3. Did the applicant have at his disposal an effective domestic remedy for his complaint under Articles 6 § 1 of the Convention concerning equality of arms, as required by Article 13 of the Convention?