Note to judgment No. 23786 of 11 October 2017, President Judge Di Iasi, Rapporteur Stalla, Court of Cassation

TRIBUTARY PROCESS — Alleged lack of passive legitimacy of the appellant — Rejection of the matter at first instance and upheld on the merits of the appeal — Need for an interlocutory appeal. A taxpayer who claims that he lacks passive legitimacy and obtains a negative ruling in that regard at first instance is required, even if he is entirely successful in the merits of the case, to refer the matter to the Regional Tax Committee with the  interlocutory appeal, since the mere re-appeal pursuant to Article No. 56 of Legislative Decree No. 546/1992 is not sufficient in that regard.

In the note to the sentence, the author confirms his belief that, except for the cases indicated in Art. No. 59, paragraph 1, of Legislative Decree No. 546, the appeal judge faces and decides the dispute and does not check the legitimacy of the first instance sentence. He also points out that the lesser foreclosure of the tax appeal proceedings compared to the civil appeal proceedings confirm their purely renewing nature, in view of the fact that in tax matters the need is to ascertain the material truth of the controversial events.