When a notarial deed is executed, the notary is responsible for paying the taxes due on behalf of the parties involved. But what happens if the notary does not fulfill this obligation, even though the parties have already provided the necessary sums?
The Court of Cassation, with order no. 26800 of 15 October 2024, addressed this issue, establishing that the Revenue Agency can legitimately take action also against the contracting parties, confirming the principle of joint and several liability.
What are the implications of this decision and how does it affect the protection of the parties?
Let’s find out together.
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The case analyzed by the Supreme Court
The heart of the dispute lies in the nature of the relationship between the taxpayer, the notary and the Revenue Agency. In the specific case, the real estate company, after having regularly deposited the sums due for the payment of taxes in the hands of the notary, found itself faced with a further request for payment.
This is because the notary, contrary to his obligations, had unduly withheld the sums without transferring them to the treasury.
The company had initially contested the liquidation notice at the Tax Commission, arguing that the delivery of the money to the notary should be equated to an actual payment to the State. This position was based on Article 1188 of the Civil Code, which establishes the principle according to which payment made to a person authorized by the creditor releases the debtor from the obligation.
Article no. 1188
Payment recipientPayment must be made to the creditor or his representative, or to the person indicated by the creditor or authorized by law or judge to receive it.
Payment made to someone who was not entitled to receive it releases the debtor, if the creditor ratifies it or has taken advantage of it.
The company believed that, in the context of the procedures for electronic registration of real estate deeds, the notary was not simply an intermediary, but the only person responsible for tax compliance.
However, the judges of first and second instance had rejected the company’s arguments, confirming that the current legislation attributes joint and several liability between the contracting parties and the notary for the payment of indirect taxes. Consequently, despite the offense committed by the notary, the taxpayer remains obliged towards the Treasury, with the possibility of taking action against the professional through an action for compensation for damages.
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What the law says
The case raises questions of primary importance regarding the interpretation of tax legislation and the responsibility of the notary in real estate sales transactions. Article 57 of Presidential Decree no. 131/1986 establishes that the payment of registration, mortgage and cadastral taxes is a joint and several obligation between the contracting parties and the notary.
This means that, in the event of non-payment, the Revenue Agency can take action against any obliged party, including the taxpayer, regardless of the behavior of the notary.
The discipline has evolved over the years with the introduction of the single IT model (MUI), which has simplified and speeded up the electronic registration of documents. However, as underlined by the Court of Cassation, this technological innovation has not changed the underlying legal principles.
The notary, despite being directly responsible for the payment of taxes, continues to play a role of guarantee and it does not replace the taxpayer’s responsibilitywhich remains the main subject of the tax obligation.
Furthermore, the law does not expressly provide that the payment of the sums to the notary frees the taxpayer from his tax obligation. This leaves room for situations of uncertainty, such as the one examined in the ruling, where the taxpayer risks having to pay the same tax twice, barring subsequent legal remedies against the non-compliant notary.
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The Court’s decision
The Court of Cassation, with order no. 26800/2024, rejected the taxpayer company’s appeal, confirming the legitimacy of the liquidation notice issued by the Revenue Agency. In its decision, the Court reiterated that, by virtue of article 57 of Presidential Decree no. 131/1986, the tax solidarity obligation remains even if the notary has failed to pay the sums received.
According to the judges, the legislation attributes to the notary a guarantee role aimed at ensuring the effective payment of taxes, but does not exempt him from sharing responsibility with the contracting parties. The Court underlined that the handing over the money to the notary does not have a discharging effect with respect to the taxpayer’s tax obligations, since there is no law that expressly provides to the contrary.
Furthermore, it clarified that the illicit behavior of the notary does not affect the nature of the joint and several obligation, since this concerns the tax relationship between the taxpayer and the State, not the fiduciary relationship between the taxpayer and the notary.
Regarding the questions of constitutional legitimacy raised by the company, the Court reiterated that fiscal solidarity does not violate the principles of equality and ability to pay enshrined in articles 3 and 53 of the Constitution. According to the Court, the joint and several obligation is not in conflict with these principles, as the notary acts not as a delegate of the State, but as a person who, on the basis of a fiduciary relationship, deals with the transfer of the sums intended for the payment of taxes .
