A TRUST is not a fiscal entity and, therefore, cannot be considered as a generic taxable person.
These are the conclusions reached by the Provincial Tax Commission of Milan, Division 1, in ruling no. 1365 of 27 March 2018, which cancelled a request for payment of over €1,000,000 served directly on a TRUST rather than the TRUSTEE.
In this case, the Collection Agent served directly on a TRUST a notice of payment for over €1 million regarding mortgage and land registry taxes, plus fines and interest, following the failure to appeal against a notice of liquidation and correction which the Collection Agent maintained had previously been served (a fact disputed by the claimant).
The request for payment was challenged by the TRUSTEE, who, among the various objections raised, maintained the legal inexistence and/or fundamental nullity of the service of the request, due to the lack of capacity to be sued of the TRUST (to which the collection request was addressed). The TRUSTEE claimed that the TRUST on which the request was served did not exist as a taxable person, that the request was not motivated, and that the Collection Agent had forfeited its authority to serve the request.
The judges at first instance accepted the claimant’s arguments on several points, establishing specifically that the TRUST cannot be considered as an entity for tax purposes, let alone as a generic taxable person. A TRUST is not a legal entity with its own personality; it is instead the TRUSTEE who deals with relations with third parties and is the legal representative, with distinct subjective interests. Also when discussing revenue tax claims, the principle is the same, since it is consistent with the specific characteristic of the deed establishing the TRUST to argue that that deed does not give rise to a new legal entity, despite its effect of asset segregation. For this reason, the judges of the 1st division of the Provincial Tax Commission in Milan considered service of the request for payment, as well as the request itself to be non-existent and/or null due to the TRUST’s lack of capacity to be sued.
The judges also added that the disputed request for payment lacked motivation, in violation of art. 3 of Law 241/1990, also applicable to collection orders, as it did not allow the taxpayer to verify the factual premises and legal reasons behind the agency’s decision and its subsequent registration.
The Provincial Tax Commission of Milan concluded by allowing the claim with regard to forfeiture, ruling the applicability in the case in point of article 76 of Presidential Decree 131/86, deeming the taxes requested to be supplementary for all intents and purposes. Consequently, payment thereof could be sought no later than three years after the registration date of the request for payment.
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