L'INTRODUZIONE DELLA TESTIMONIANZA SCRITTA NEL PROCESSO TRIBUTARIO: UN PRIMO PASSO VERSO L'ESPRESSA ABOLIZIONE DEL DIVIETO DI CUI ALL'ART. 7, D.LGS. N. 546/92

With the law enacting the 2009 civil trial reform, the written testimony (affidavit) was included in the body of evidence admitted before the judge and its regulation was entrusted to art. 257 bis of the Italian Code of Civil Procedure. The aim of this paper is to speculate on the explicit admissibility of this form of evidence in tax lawsuits with a view to (i) superseding the still ongoing debate on the merely circumstantial value of third parties’ statements in a trial/proceeding, and (ii) understanding whether, in the wake of the current open-mindedness shown by both domestic and international jurisprudence, it is still appropriate to maintain the ban on witness evidence as provided by art. 7, paragraph 4, of the Legislative Decree 546/92. This paper provides an in-depth analysis of the rationale underlying the above mentioned ban for trial purposes, and reviews the stance taken by jurisprudence as well as the signals which can be inferred from the transposition into the Italian law of the European rules restraining the use, in trial, of the testimonies gathered by the Tax Authority during the proceedings and of those given in the plaintiff’s interest. It then focuses on the admissibility of the affidavit in the tax lawsuit according to a model similar to the one recently introduced in the civil trial; this is, in fact, viewed as an “intermediate” solution that meets halfway to compromise between the reasons underlying the prohibition on the account of the marked “specificity” of the tax trial and the need to ensure, under all circumstances, the full and effective safeguard of the individual/tax payer’s fundamental rights