Customs and tax law and dispute management
The Telchini & Mayr Firm assists private individuals and companies in managing tax and customs disputes against tax deeds issued by the tax Administration in various forms, e.g., assessment notices issued by the Revenue Agency or the Customs Agency.
Judicial defence is guaranteed with specialised skills in both levels before the provincial and regional tax commissions according to the rules for tax decisions governed by Italian Legislative Decree 546/1992, as amended, as well as during the last proceedings before the Court of Cassation.
The purpose of the judgment is to challenge the tax deed, which may be affected by invalidity due to formal inconsistencies of the deed including the territorial incompetence of the Tax Office, lack of legitimacy of the official at the signing of the act, forfeiture of assessment power due to the expiration of the terms for the assessment of the tax violations, as well as deemed illegitimate in consideration of the irrelevance for tax purposes of the disputed transactions and the erroneous interpretation of tax laws. Also, often the prima facie evidence relied on by the Office to support its disputes proves to be groundless and, in any case, lack the requisite of severity, precision, and consistency.
In tax matters, it also occurs that the legitimacy of the tax deeds must be in line with the fundamental principles of European Law, as confirmed by the law of the Court of Justice. In particular, the principle of legitimate expectation and legal certainty, to which the EU and national institutions are subject, "aimed at guaranteeing the predictability of legal situations and relationships falling within the scope of Community law" (see, among others, the sentence of the Court of Justice of 15 February 1996, in case C-63/93, Duff), require the Administration to ensure the good performance and impartiality of its action, allowing taxpayers to invoke the protection of legal positions acquired by virtue of "well-founded expectations" aroused by previous conduct by the Administration.
Specializations in European Union law allow the lawyers at the Telchini & Mayr Law Firm to set forth the principles mentioned above authoritatively, at both levels, and in the event of a judgment before the Supreme Court and, in particular, in the discussion of the tax appeal in a public hearing, which represents a fundamental part of the process, in which the conviction of the judging panel is formed regarding the reasons for the appeal.
In the course of its decades of experience, the firm has successfully promoted litigation regarding the reimbursement of taxes unduly paid by taxpayers. In particular, these are hypotheses in which it is possible to invoke the illegitimacy of tax or customs regulations in domestic law, as being openly contrary to the law of the European Union, which in this context has outlined mandatory principles which the legislator and the national administration must follow. In this regard, the law of the Court of Justice has consistently affirmed the taxpayer’s right to obtain reimbursement for taxes collected in violation of Community law, prohibiting Member States from placing obstacles that render the exercise of this right excessively difficult for the taxpayer (the "Dilexport" Court of Justice sentence of 9/2/1999 and "COMATEB" of 14/1/1997, as well as the sentence "Commission of the European Communities v Italian Republic" of 9 December 2003 are strong examples).
Tax and Customs Criminal Law
Another area in which the Telchini & Mayr Firm operates is in tax and customs criminal law.
The Italian legal system allows the joint application of administrative tax sanctions and criminal sanctions. For correct and effective defence, a comprehensive strategy is essential, especially considering the different rules governing the collection of evidence for criminal and tax procedures.
The positive outcome of the criminal trial often turns out to be decisive for the purposes of a successful defence before the Tax Commission.
Tax penalties are governed by Italian Legislative Decree 74/2000 ("New lay relating to crimes regarding income and value added taxes").
Some cases assume that fraudulent conduct was committed, such as those referred to in Articles 2 ("Fraudulent declaration by use of invoices or other documents for non-existent transactions"), 3 ("Fraudulent declaration by other devices") and 8 ("Issue of invoices or other documents for non-existent transactions"). In these cases, there is no need to exceed a criminal liability threshold in order to commit a crime. Consequently, the crime can be considered completed regardless of the amount not taxed.
Other criminal cases require a punishibility threshold to be exceeded. These are the regulations referred to in Articles 4 ("False tax declaration"), 10 bis ("Failure to pay due or certified withholdings"), 10 ter ("Non-payment of VAT"), 10 quater ("Undue compensation") in Italian Legislative Decree 74/2000. If the punishibility threshold is not exceeded, excluding the criminal relevance of the fact, defence in court will still be necessary in order to prevent the application of administrative sanctions and the recovery of the allegedly evaded tax.
With regard to the customs criminal law, it should be noted that South Tyrol is a border area and therefore there are constant controls and enforcement measures by the Authority.
Criminal penalties in customs law are set forth in Decree of the President of the Republic of Italy no. 43 dated 23/1/1973 ("Approval of the consolidated law on customs") and aim to ensure that the State receives its border rights (import and export duties, levies and other taxes on imports or exports required by European Union regulations, monopoly rights, sur taxes, etc.).
Articles 282 et seq. governs the various types of smuggling, including the crime set forth in Art. 291 quater of "Criminal association aimed at the smuggling of foreign-manufactured tobacco".
Over decades of activity, the Telchini & Mayr Firm has acquired specific expertise in these matters, which it has used to defend, and to continue to defend, major companies in the country.