Sent. Court of Cassation, sez. trib., December 10, 2007, No 25799
THE SUPREME COURT OF TAX SECTION CASSAZIONE
Composed by Ill.mi Sigg.ri Magistrates: PAOLINI
Dr. John - President - Dr.
MERONI Antonio - Director -
Dr. Eugenia Marigliano - Director - Dr
. Antonino DI BLASI - Director -
GENOVESE Dr. Francesco Antonio - rel. Director -
gives the following:
ruling on the appeal by:
AEM Spa, in the person of President pt, electively Sun in Rome, No way to Sow 57, at the Chambers of. Joseph Pizzonia, who represents and defends the lawyer together. Dario Romagnoli - sought -
against the City of Cassano d'Adda, in the person of Mayor pt, el. Sun in Rome, Via Crescenzio No 91, at the Chambers of. Lagozino Nicola, who represents and defends the right delegation acts
together with the lawyer. Prof. Francesco Tesauro of the Milan Bar - controricorrente -
against the ruling of the Tax Commission of Regione Lombardia n. 99/35/05 filed June 22, 2005;
hearing the report of the proceedings held in chambers on 22/11/2007 by Speaker Francis Anthony Genovese;
Lette the written submissions of the prosecution
Done
- that the company AEM SpA appealed the notice of imposition of sanctions for failing to submit the claim / complaint Ici, for the year 1996 in relation to the property located in territory of the town of Cassano d'Adda, turned to the production of electricity;
- that sanctions were imposed in the tax rate of 70% established by the notice of assessment and clearance, together with the notice served for the imposition of sanctions pursuant to Legislative Decree no. 504 of 1992, Art. 14;
- that the CTP has upheld the appeal for lack of motivation;
- that the city has appealed, accepted by the CTR of Lombardy;
- that, against that decision, the AEM Spa appealed to the Supreme Court, entrusted to a single cause;
- that the City made a counterclaim;
- which, with the first ground of appeal ( with which it alleges infringement and false application of Law No. 212 of 2000, art. 7, D. Lgs. No 504 of 1992, Art. 11, paragraph 2 - a, and absolute lack of motivation), the applicant submits that the CTR was wrong in order to not detected (but reported) lack of motivation of the notice of imposition of sanctions;
- which, with the second ground of appeal (with whom he is allegedly infringed and misapplication of the D . Legislative Decree No. 504 of 1992, Art. 7, paragraph 1, lett. a), and errors of reasoning), the applicant submits that the CTR was wrong as to the denial, a requirement of the exemption by ICE, as the company, following its establishment, would have enjoyed - for the first three years - the same tax payable to the City and property would be allocated exclusively to institutional tasks, namely a local public service, such as free ICE;
- who also claim the tax went from the notice relates to the imposition of sanctions " mainly the period of ownership of property by the municipality of Milan, who, however, are not eligible for a moratorium " (p. 30);
- which, with the third plea (with whom he is allegedly infringed and misapplication of Legislative Decree no. 472 of 1997, Art. 6, paragraph 2 of Law No. 212 of 2000, art. 10, paragraph 3, of Legislative Decree . No. 546 of 1992, Art. 8) The applicant submits that the CTR was wrong in order to not detected (but alleged) situation of objective uncertainty excluding the imposition of sanctions, given the lack of official interpretations on the part of 'Directors and conflicting rulings avutesi later, the case law on the merits;
- which, in relation to these complaints, the PG has requested that the Court, pursuant to art. 375 cpc, rejects the appeal to be manifestly unfounded.
Law - which tale conclusione deve essere condivisa;
- che, con il primo motivo di ricorso, si prospettano, anche in maniera non autosufficiente, questioni inammissibili in questa sede, riguardanti le valutazioni compiute dalla CTR circa la sufficiente motivazione del provvedimento amministrativo sanzionatorio;
- che, in ordine al secondo motivo di ricorso, questa Corte ha già avuto modo (con la sentenza n. 8450 del 2005) di enunciare il principio secondo cui: " In tema di imposta comunale sugli immobili (ICI), il D.Lgs. 30 dicembre 1992, n. 504, art. 7, comma 1, lett. a), ne stabilisce l'esenzione per gli immobili posseduti dallo Stato e da altri enti pubblici ivi elencati, purchè "destinati esclusivamente ai compiti istituzionali ", a condition where the burden of proof, according to general principles, the taxpayer claiming the benefit. It 'also incorrectly identified the concept of" commercial purposes ", which are peculiar to the local authority and who are the raison d 'be the same with that of "public service" that can be done also for other subjects through a private nature, such as municipal utilities or other entities or companies (as in this case) power supplies. These supplies albeit constituents services for the public, can not be included among the tasks that have their own separate institutional connotation and businesses that provide such assets operators trade, they have no reason to enjoy exemptions "
- that this principle, which involves allegations were unfounded, should be given continuity, even here, there are no reasons that require action by the review;
- which, In this regard, it should not dwell on the profiles of EU law in relation to the three-year conflict, as illegal state aid, since the sanctions were imposed in consideration of tax for the year 1996 in which the property, by express admission of the company, was in possession of the Municipality of Milan;
- which, however, these complaints were not even attached in a manner dependent, since no indicated how, where and when they were committed in the course of the main proceedings and the consequences for, if substantiated, they would generate for the applicant company, the successor of that town - in December 1996 - in her debt position, the third reason is unfounded, since, on the one hand, it pointed out the location of the uncertain interpretation of tax laws and, by another, nor the evaluations made by the trial court to exclude the objective situation of uncertainty, are effectively censored by the allegation of contrasts between complex and relevant goals;
- which, in conclusion, the appeal must be dismissed and the costs of the proceedings, dismissed as from the device, borne by the losing party.
PQM
dismiss the appeal and order the applicant to pay the costs that liquid in Euro 900.00 Euro 800.00 for fees, as well as overheads and accessories of the law.
Decided in Rome, in the Council Chamber of the tax section of the tax section, November 22, 2007.
deposited at the Registry December 10, 2007
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