Article 49 - Principles of legality and proportionality of criminal offences and penalties
Key facts of the case:
The two private citizens filed a complaint to the Court of Cassation against the decision of the Latium Regional Tax Commission to consider legitimate the financial penalty imposed to the complainants by the Public Revenue Agency becuse they had benefitted of the financial contribution for the purchase of their home – aimed at supporting beneficiaries in having access to an essencial right such as the right to housing - even though they didn’t have right to it since their home actually didn’t fit the requirements because it was to be considered a “luxury estate” according to the in-force legislation. One of the grounds of the penalty was that the complainants provided a mendacious declaration concerning the estate they wanted to purchase in order to benefit from the financial contribution.
Outcome of the case:
The Court of Cassation considered that according to the current in-force legislation (Art. 10.1 of the Legislative Decree No. 23 of 14 March 2011) – which changed the criteria defining a “luxury estate” excluded from the financial contribution for the purchase of a dwelling – the financial penalty could still be considered applicable to the property of the two complainants. The result of this question is in the Court’s opinion negative since according to the current criteria their estate could not be considered a “luxury estate” anymore. For this reason, the complainants could not be confirmed a financial penalty that cannot be imposed according to the in-force legislation. For this reason, the complaint has to be accepted. Moreover, the mendacious declaration provided by the complainants – even representing an illegal practice – does not constitute an offence because according to the in-force legislation it does not represent the basis for the complainants to have access to the financial contribution, since the criteria ruling its concession have been reformed in the meanwhile.
The principle of rule of law and of favor rei in tax matters – which has already beenemphasised,in case of administrative sanctions being substantially relevant from the criminal law point of view, also in compliance with Article 49 of the EU Charter of Fundamental Rights and of Article 7 of ECHR – is to be applied tothe case at handinasmuch as the penalty was imposed because the taxpayer had falselyclaimed that the purchased property was characterised by ‘non-luxury’ intrinsic features (again in accordance with the ministerial criteria referred to above); in other words, because the taxpayerhad made a declaration that, further to the legislative reform, is currentlyno longer relevant for the legislative framework.
La ricorrenza del principio di legalità e di favor rei in materia tributaria - già ampiamente valorizzato, in presenza di sanzioni amministrative di sostanziale valenza penale, anche ex artt. 49 della Carta dei diritti fondamentali UE, e 7 CEDU - si impone, nella specie, sotto il profilo che tali sanzioni vennero inflitte per avere il contribuente dichiarato che l'immobile acquistato possedeva, contrariamente al vero, qualità intrinseche 'non di lusso' (sempre secondo i suddetti parametri ministeriali); vale a dire, per aver reso una dichiarazione che, per effetto della modifica normativa, oggi non ha più alcuna rilevanza per l'ordinamento.