Tourist tax: Court of Auditors responsible for non-payment

With the recent ordinance n. 19654 of 24 July 2018, the Court of Cassation affirmed that, within the tax relationship relating to the residence tax, the manager of the accommodation (or hotelier) has the role of "accounting agent", with the task of collecting and transfer the sums collected to the Municipality according to a public service relationship

The regulation of the tourist tax was introduced in 2011, providing for the possibility for municipal administrations to establish it for the physical persons who stay in accommodation facilities located on their territory. Since the state regulation of implementation has not yet been issued, the methods of application of the tax are currently exclusively regulated in the individual municipal regulations, which in most cases attribute to the receptive structures the function of collecting and repaying the tax to the institution's tax authorities .

In this context, states the Court of Cassation, the tax ratio underlying the residence tax is exclusively between the City that established the tax (active subject) and the one who is staying in the accommodation, on which it bears (taxable person). The manager of the accommodation facility (or "hotelier") is therefore completely unrelated to the tax relationship, and in the silence of the primary law can not assume the role of "substitute" or "tax manager", nor could this role be attributed to him by the municipal regulations.

The Municipality, therefore, is a mere recipient of sums collected by the manager of the accommodation (or "hotelier") as a tourist tax. Since the municipal regulations entrust the latter with obligatory and functional activities to the realization of the tax authority of the local authority, a public service relationship is established between "the hotelier" and the municipality, with tasks that are eminently accounting, completely divorced from the tax service although at the same necessarily functional, assuming central importance the collection of the tax and its transfer to the municipal coffers. As part of this public service relationship, the activities of collecting and transferring money imply the "material availability" of public money.

The manager of the accommodation, which on behalf of the municipality collects from those who stay in the tourist tax with obligation to subsequently pay it to the City, then certainly handles public money, and is consequently required to "make the account".

The activity of collecting the residence tax made by the tourist accommodation assumes the nature of a public service, and the obligation to pay the sums collected for this purpose to the local authority is of a public nature, being regulated by rules that deviate from the common system of civil obligations due to the protection of the public administration creditor's interest in the prompt and safe collection of receipts. It follows that the relationship between "hotelier" and institution is configured as a service relationship, as the external subject is part of the process of public institution, as a participant in the publicity of the latter, assuming the status of " accounting officer ". To this end, it does not detect the nature of a private entity, nor the legal title under which the service is performed,
In conclusion, the United Sections of the Court of Cassation have established that the disputes concerning the loss of revenue for the failure to transfer to the Municipality of the sums collected by the accommodation facilities as a tourist tax fall within the scope of accountability, for which the Court of Auditors is responsible.

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