When a TARI assessment notice is unlawful

Receiving a TARI enforcement notice can be cause for concern: the amount requested is often high and the notice is immediately subject to enforced collection.

In recent months, Rome City Council has indiscriminately issued enforcement notices, challenging citizens and businesses for non-payment of Ta.Ri. and TEFA (the provincial tax linked to Ta.Ri.).

What is a TARI enforcement notice?

An enforcement notice is a document issued by the municipality:

contests the non-payment of TARI (waste tax);
quantifies the amount due (including unpaid tax, penalties and interest);
justifies the factual and legal reasons that led to the assessment of the violation;
demands payment of the amount due from the citizen within 60 days of notification.

After this period, the Municipality’s claim becomes immediately enforceable.

However, these notices are not always legitimate. In fact, in practice, many contain errors or defects that allow them to be cancelled.

The most frequent grounds for illegality

In this article, we will indicate the main defects or errors that render an enforceable assessment notice unlawful – and therefore voidable. For example:

The claim for the disputed year (e.g., the Ta.Ri. due in 2019) is time-barred.
The data or information provided is incorrect (e.g. the surface area of the property differs from that indicated in the land registry search; the number of occupants is incorrect; failure to register the change/termination of the contract, duly communicated by the owner of the same);
The payment notice was not received.
The Ta.Ri. has been duly paid for the disputed years.

Why are they unlawful? How can these notices be contested?

1) Assessment notified more than 5 years ago

According to Article 2948(4) of the Italian Civil Code, ‘interest and, in general, anything that must be paid periodically on an annual basis or in shorter terms’ is subject to a limitation period of 5 (five) years.

Therefore, local taxes such as Ta.Ri. – being periodic payments – are subject to the short five-year limitation period.

Specifically, Article 20, paragraph 1, of Legislative Decree 472/1997 stipulates that any municipality is obliged to notify the assessment notice, contesting the non-payment of the tax and applying the relevant penalties (and any interest, according to Article 2948, paragraph 4, of the Italian Civil Code, cited above) by 31 December of the fifth year following the year in which the TARI was due to be paid (e.g., payment of the 2019 TARI may be requested by the municipality by 31 December 2024).

This means that if the notice is served after this deadline, the taxpayer may contest the statute of limitations on the Municipality’s claim – both on the tax and on the related interest and penalties applied – and obtain the cancellation of the act.

The 85-day extension

However, Article 67, paragraph 1, of Decree Law No. 18/2020, following the suspension of collection activities during the Covid-19 pandemic, introduced an 85-day extension of the deadlines, which would postpone the limitation period to 26 March of the following year.

However, case law is not unanimous on the applicability of this suspension to years after 2022.

2) Notification defects

According to the unanimous opinion of the Court of Cassation, the correctness of the tax claim procedure (from assessment to collection) is ensured by compliance with a procedural sequence of specific acts, with the relevant notifications, in order to enable the recipient to effectively exercise their right of defence.

The correctness of the notification is therefore fundamental to the validity of the act.

It follows that the omission of notification or a serious error in the notification of the assessment notice constitutes a procedural defect that renders the consequential notified act null and void (Civil Court, judgment no. 7746/2022).

The document is therefore null and void if, for example:

It has not been notified or has been notified to an incorrect address of residence/domicile;
The recipient of the notification is not the legitimate owner/possessor of the property.
It was served via certified email to an address not listed in the official registers (Reginde, INI-PEC, Chamber of Commerce, etc.);
The municipality cannot prove that the taxpayer was notified.

3) Non-existence of the alleged violation and illegality of the penalty, interest charged and notification costs.

Furthermore, the assessment notice is flawed and, therefore, unlawful when the municipality alleges non-existent violations of the Ta.Ri. Regulation against the taxpayer.

For example:

failure to declare any circumstance relevant to the application of the Ta.Ri. (commencement/change/cessation of possession, occupation or ownership of the property, the existence of conditions for obtaining concessions, exemptions or reductions, etc.);
failure to pay/partial payment/late payment of the Ta.Ri.

If the taxpayer provides evidence to the contrary of what is contested by the municipality (e.g. receipts of payment or a copy of the notification of change/cessation of possession/occupation of the property), the assessment notice may be cancelled.

Illegality of the penalty and interest imposed

In this case, any penalty imposed by the municipality is also unlawful and must therefore be cancelled.

In fact, according to the Court of Cassation, the erroneous identification of the tax basis (e.g., the absence of the alleged violations) determines the derived illegality of the entire act, including the penalty part (Court of Cassation, Section V, 21 February 2020, No. 4556).

Finally, with regard to legal interest, it is an established principle that interest and notification costs follow the fate of the tax and penalties. 4

The Court of Cassation has clarified that ‘the annulment, even partial, of the tax assessment automatically invalidates the interest linked to it’ (Court of Cassation, Section V, 18 September 2019, No. 23263). The tax courts have also repeatedly stated that ‘notification and collection costs cannot be borne by the taxpayer when the underlying act is unlawful’ (see Lazio Tax Court, Section II, 7 March 2023, No. 1024).

Otherwise, there would be a financial burden contrary to the principles of good administration and protection of legitimate expectations.

4) Illegality of the penalty for violation of the principles of legality, specificity and proportionality

A further ground for illegality is the application of a penalty not provided for by law or manifestly disproportionate to the unpaid tax or the violation committed by the taxpayer.

In fact, Articles 7 and 12 of Legislative Decree 472/1997, as well as Article 13 of Legislative Decree 471/1997, stipulate that, once the violation has been correctly qualified (e.g., failure to register/change/terminate a contract for Ta.Ri. purposes; failure to pay/late payment of Ta.Ri., etc.), the applicable penalty is exclusively that provided for in Article 13 of Legislative Decree 471/1997, i.e. equal to:

30% of the unpaid tax, until 2023;
25% of the unpaid tax, from 2024.

On this point, the Court of Cassation has clarified that ‘the Administration is required to apply the penalty regime in force ratione temporis … most favourable to the taxpayer’ (Court of Cassation, Section V, 11 May 2021, No. 12463).

Not only that. The Court also ruled that each tax violation must be penalised independently, with reference to the individual tax period and the amount actually unpaid, as “it is unlawful to accumulate penalties that lead to a result that is manifestly disproportionate to the individual violation, since the automatic multiplication of penalties is not permitted” (Court of Cassation, Section V, 30 October 2018, no. 27677; conf.: Court of Cassation, Section V, 9 June 2017, no. 14402).

In fact, the principle of proportionality requires that penalties be effective and dissuasive, without exceeding the limit necessary to achieve the general interest pursued. 5

Therefore, the application of a penalty (e.g., 120%, 200% or 300% calculated on the tax), not provided for by the Ta.Ri. Regulation or disproportionate to the alleged violation, is contrary to the aforementioned rules and, therefore, unlawful (and, with it, the entire act).

5) Incorrect data (occupants, cadastral area, etc.) and incorrect calculation of the Ta.Ri.

An executive assessment notice may also be cancelled when the information and data contained therein are incorrect and, therefore, the fixed and variable parts of the Ta.Ri. are calculated on the basis of data and information that differ from the actual ones.

Consider, for example, the incorrect identification of the cadastral area or the number of occupants of the property, which may lead to an increase in the fixed portion (calculated on the basis of the area) and the variable portion (also calculated on the basis of the number of occupants).

In this case, the taxpayer has the right to contest the amount of Ta.Ri. that the municipality is claiming in excess, providing proof of the correct data (e.g., the cadastral survey, showing the exact surface area of the property; or the family certificate, to prove the exact number of tenants), in order to obtain a correct recalculation of the tax due.

6) Failure to verify and apply reductions or exemptions

The notice is also unlawful if the municipality does not take into account the taxpayer’s right to be exempted from paying the Ta.Ri. or to obtain a reduction in the rate.

For example, Article 13 of the Ta.Ri. Regulation provides for the taxpayer’s right to a reduction in Ta.Ri.:

80% (limited to the period of disruption) in the event of failure to provide waste management services or interruption of services for trade union reasons or due to recognition by the health authority of damage or danger of damage to people or the environment;
by 50% (calculated on the fixed amount) in the event that the property is more than 1,000 metres from the nearest unsorted waste collection point.

Furthermore, case law has clarified that a dwelling can be considered objectively unusable for TARI purposes (and, therefore, subject to exemption) when it is completely devoid of any furniture (i.e. totally empty) and, at the same time, has no active connections to the main utilities (water, electricity, gas). 6

7) Failure to provide or insufficient reasoning regarding the established violation

A further reason for the illegality – and, therefore, annulment – of the assessment notice is the failure to provide or insufficient legal justification for the violation ascertained and/or the penalties imposed by the Municipality.

Article 7 of Law No. 212/2000 (the so-called Taxpayer’s Charter) clearly stipulates, in the first paragraph, that the acts of the financial administration must be ‘motivated, under penalty of annulment’, with specific indication of the assumptions, means of proof and legal reasons on which the decision is based.

Finally, the grounds must expressly indicate the reasons why the data and elements contained in the act referred to are considered to be valid and well-founded.

In other words, the tax assessment must contain the factual and legal grounds on which the claim is based, so that the recipient/taxpayer is aware, from simply reading the notified measure, of the grounds on which the request of their municipality is based and is in a position to fully exercise their right of defence, as prescribed by Article 24 of the Constitution (see Cass. No. 18306/2004, Cass. No. 10209/2010, Cass. No. 2907/2010).

In fact, administrative case law has clarified that ‘the reasoning behind the administrative measure represents the prerequisite, the foundation, the centre of gravity and the very essence of the legitimate exercise of administrative power pursuant to Article 3 of Law No. 241 of 1990 and, for this reason, an irreplaceable safeguard of substantive legality…'(Council of State, Section II – 06/09/2023, No. 8193).

Therefore, the lack of reasoning renders the act notified to the taxpayer null and void, due to violation of the right of defence (CTP of Bari, judgment no. 111/2009).

How can taxpayers defend themselves?

So, once a taxpayer has received an enforceable assessment notice from the municipality, what remedies are available to them to assert their rights?

1. The self-defence application

Firstly, they can submit an application for self-defence directly to the municipality that notified the notice – i.e. a request for annulment of the act or recalculation of the tax due – within 60 (sixty) days of receipt of the act. 7

The municipality may accept or reject the taxpayer’s request (and ask for additional documentation), but the submission of the application does not suspend the time limits for any enforcement against the taxpayer’s assets, nor those (60 days from receipt of the act) for appealing to the Court of First Instance for Tax Matters.

2. Appeal to the Court of First Instance for Tax Matters

Therefore, if the notice is not cancelled within the following 60 days, or if the taxpayer is unable to reach an agreement with the municipality, the appeal to the Court of First Instance must be submitted, as stated, no later than 60 (sixty) days from the actual receipt of the executive assessment notice.

In fact, once this deadline has passed, the taxpayer will lose the right to assert their legal arguments (on the merits) before the Tax Court, but they may still challenge before the aforementioned Court any essential or procedural defects in the notice itself or in any subsequent tax assessments that may be notified to them.

Below the threshold of €3,000, the appeal may also be lodged independently. Above this threshold, the assistance of a solicitor will be required.

The precautionary application for suspension of the assessment notice

In the appeal, the taxpayer may also request the Tax Court to suspend, as a precautionary measure, the enforceability of the executive assessment notice, if there is a well-founded (and proven) fear that any enforcement may cause serious damage, capable of having a decisive impact on the appellant’s economic conditions.

Legal assistance from the Coscia Law Firm

If you have received an enforcement notice or a payment notice contesting a violation relating to Ta.Ri., our firm can provide you with specific advice for your case and assist you in all extrajudicial and judicial phases.