The Court of Cassation returns to the well-known issue of the PREU evaded in the case of an Alot disconnected from the network and the responsibilities of the concessionaire with whom the operator has stipulated a contract.
The Tax Section of the Court of Cassation held the concessionaire jointly and severally liable and confirmed the ruling of the CTR of Lombardy which found that the concessionaire should actually be considered jointly and severally liable with the operator for the violation
“The decisions invoked…only dealt with the same legal issue, i.e. the interpretation of Legislative Decree no. 269 of 2003, art. 39 quater, therefore being unable to apply external res judicata with reference to questions of interpretation of legal norms. To the foregoing, however, it must be added that nothing leads us to believe that the said rulings had as their object the "same legal relationship", established with the same managers and owners and with reference to the same devices. The relationship referred to above, however in no way explored and illustrated by the decisions in question, not the subject of an explicit ruling, is also identified by the counter-appellant in an irrelevant way. To establish the identity of the legal relationship to which a judgment is referable, it is not in fact sufficient to compare, as the taxpayer did..., the two subjects who were part of the judgment, but it is necessary to refer to all the subjects involved in the more complex substantial relationship, which contribute to identifying the concrete case in question. Likewise, the identity of the objective situation underlying the relationship cannot be affirmed solely by virtue of the circumstance that in the present judgment, as in those adduced as precedents constituting the deduced judgment, the identification of the perpetrators of the offense on the devices was certain. of entertainment. The contested liability of the concessionaire was in fact deduced by the CEO with reference to distinct factual situations, in which both the owner of the gaming machines and the operator of the premises in which they were installed play autonomous and peculiar roles which, depending on their attitude (also with reference to the different commercial establishments where located), could have had a different impact also on the possible existence of the dealer's liability. The latter, then, is identified and delimited, from an objective point of view, by the number and characteristics of the machines subject to verification and observation. It must be considered, moreover, that this matter originates from a specific investigation into an illicitly modified appliance (owned by XXXXX and installed, in this case, at the commercial business "(Omissis)" - managed by the company XXX.) and that the legal relationship in consideration does not even have the character of "prolonged execution", nor does it refer to facts with "permanent or multi-annual effectiveness" but translates into a unitary and defined event, anchored to specific and autonomous facts, whose identity is indefectible prerequisite for the operation of the res judicata, their subsumption in the same regulatory discipline remaining irrelevant".
With the third reason, the defense of the appellant, i.e. the Concessionaire, complains of the "violation and false application of Legislative Decree 18 December 1997, n. 472, art. 3 and Legislative Decree n. 269 of 2003, art. 39 quater, converted by Law 24 November 2003, n. 326 amended by Legislative Decree 1 July 2009, n. 78, art. 15, paragraph 8 quaterdecies converted by Law 3 August 2009, n. 102” (see appeal, p. 19), for having the CTR erroneously excluded the applicability, in favor of the taxpayer, of the principle of favor rei with respect to the amendment made to the art. 39-quater cit. from Legislative Decree n. 78 of 2009, art. 15, paragraph 8, which identifies the manager and not the licensee as solely responsible for the improper use of entertainment equipment;
According to the Court of Cassation, the reason is unfounded:
that, in the case of improper use of entertainment equipment pursuant to art. 110, paragraph 6 TULPS, the greater single tax levy evaded (so-called greater PR.EU), due due to the higher volume of gaming deriving from the offence, is identical and unitary in nature compared to the single tax levy, so-called. PR.EU (see, Cass., Section 5, 31.5.2019, n. 14969, Rv. 654116-01. See also Cass., Section 5, 31.5.2019, n. 14955, Rv. 654131- 01; as well as, following the outcome of trials between the same current parties, Cass., Section 5, 29.9.2019, n. 23840, in reasons, and, again in reasons, Cass., Section 5, 28.5.2019 , nos. 14544, 14543, 14542, 14541, 14540 and 14539); that, therefore, in the event of electronic transmission of gaming data different from those actually created, in force of Legislative Decree no. 269 of 2003, art. 39, paragraph 13, conv. in L. n. 326 of 2003, spassive object of the tax, by virtue of the guaranteed position held as holder of authorization, is in any case the network concessionaire, primarily responsible for the tax evaded (so-called greater PR.EU, ascertained following an inspection which prove the subtraction of tax bets) and for the related accessories and sanctions, regardless of the joint and several liability subsequently provided for in the event of identification of the perpetrator of the offense as a result of the art. 39-quater, paragraph 2 DL cit., in the text introduced by Law no. 296 of 2006, art. 1 (in force since 1 January 2007 and applicable ratione temporis to the case in question, as these are shots carried out on the basis of investigations carried out on 23 and 24 April 2009. See appeal, p. 5), therefore prior to the modification referred to in DL n. 78 of 2009, art. 15 conv. in L. n. 102 of 2009 (see, Cass., Section 5, 31.5.2019, n. 14955, Rv. 654131-01, cit.);
that, therefore, the network concessionaire is primarily responsible for the tax evaded (so-called major PR.EU) and the related accessories and sanctions in case of failure to identify the perpetrator of the crime, while, if the latter is identified, he is still liable with the same, albeit jointly and severally (Cass. Section 5, 25.5.2018, n. 13116, Rv. 64866701; Cass., Section 5, 6.6.2018, n. 14563, Rv. 649003-01). In other words, in the event of electronic transmission of game data different from that actually created, pursuant to Legislative Decree no. 269 of 2003, art. 39-quater, paragraph 2, conv. by Law n. 326 of 2003, in the text introduced by Law no. 296 of 2006, art. 1, paragraph 84, (and, it is reiterated, applicable "ratione temporis" to the case), the joint and several liability borne, among others, by the owner of the premises in which the devices are installed and by the network licensee holder of the relevant authorization does not is envisaged by way of complicity in the offense and with a sanctioning function, but rather with the aim of strengthening the guarantee of the integrity of the tax flows arising from the operation of gaming machines, with the consequence that it is not therefore applicable retroactively - nor does it affect on this responsibility - the modification made by Legislative Decree no. 78 of 2009, art. 15, paragraph 8-quaterdecies, conv. by Law n. 102 of 2009, which identified only the perpetrator of the offense as the sole principal person responsible (Cass., Section 5, 19.12.2019, n. 34076, Rv. 656399-01; Cass., Section 5, 8.10.2020 .21670, n. XNUMX)".
