This paper aims to illustrate when direct notification can be considered legitimate and when it cannot be considered as such, by focusing for this purpose on the main reference legislation as well as on the analysis of the jurisprudence that has recently taken place on this issue.
In practice, the problem of direct notification of tax collection files and debit notices often arises. In particular, We asked ourselves about the legal nature of the institute according to the applicable discipline: that of the law n. 890/1982 or that of the ordinary postal service?
As required by art. 14 L. n. 890/1982, The payment folder can be notified through the postal service by sending a registered letter, in closed envelope, with acknowledgment of receipt pursuant to art. 26, comma 1, second part.
It is regardless, therefore, from the intermediation of the messenger or the bailiff (firm while remaining, obviously, that of the post office).
It is direct notification, which by express regulatory provision is considered to be taken on the date indicated in the notice of receipt signed by one of the people indicated by the paragraph 3 of the aforementioned art. 26.
In the social security field, pure l’art. 30, comma 4, second part, of D, L. n. 78/2010 It generally provides that the charge notice can be notified by INPS by registered letter with acknowledgment of receipt. And quite quite in this case of specific discipline, It is to be believed that the Institute must follow the rules placed for the folder by art. 26 the D.P.R. n. 602/1973, In the same way as the postponement made by the paragraph 14 dell’art. 30 of D, L. aforementioned.
Index

The position of the Constitutional Court and the jurisprudence
Problematic aspects
Final observations and future prospects

1. The position of the Constitutional Court and the jurisprudence
As repeatedly remembered by the Supreme Court of legitimacy[1], The direct notification by post is not governed by the L. n. 890/1982, but exclusively by the rules concerning the ordinary postal service which expressly provide for the delivery of the act directly to the recipient or, in its absence, to another entity entitled to receive it (family member or person in charge of the house), as well as attribute to the postal officer the task of taking care of the subscription of the notice of receipt by the recipient or consignee.
Precisely due to its suitability to directly affect the executive form on the heritage of the subject who is the recipient, part of the doctrine[2] The idea of ​​considering the executive assessment sent directly by registered mail and not ritually notified through judicial officer.
Effectively, This notification mode has been accused of unconstitutionality in the part in which it authorizes the agent of collection to the "direct" notification of the tax collection files, with a decrease in guarantees for the recipient with respect to ordinary notification.
Contrary to what was desired from many parties[3], the consultation with sentence n. 175/2018 instead he affirmed the constitutional legitimacy of the censored provisions, where they provide for a form of notification of tax documents without the guarantees in the delivery phase of the package provided for by the L. n. 890/1982 for notifications by post carried out by the bailiff, from the municipal or special messenger.
Essentially, The Constitutional Court considered that this "simplified" form of notification is justified in the accentuated publicity role of the Collection Agent, aimed at ensuring the prompt realization of the tax credit to guarantee the regular performance of the financial life of the State.
Therefore, the direct notification of the tax documents by post, without the intermediation of the notifier agent, through the recommended package shipment with acknowledgment of receipt, the right of action and defense of the recipient of the act does not violate the right of action e, then, It is constitutionally legitimate notification methods.
On closer inspection, The judges of the Constitutional Court[4] confirmed the orientation of the Court of Cassation[5] according to which the direct notification by post of the tax documents is admissible and is not governed by the L. n. 890/1982, but only from the rules on the subject of ordinary postal service, considering this form of notification constitutionally with reference to the delivery of the act to the recipient or to another person authorized to receive it.
Furthermore, The Consulta specifies that the lack, in concreto, of "effective knowledge" of the act, For cause not attributable, can legitimize the recipient to request the remittance in terms of art. 153, second paragraph, of the Code of Civil Procedure.
Yet, despite that, it must be agreed that, endorse the generalized admissibility of the so -called. direct notification by post, fundamental notations that lead to a distinction between the measures of knowledge of an act are forgotten <<notification>> from <<communication>>, as, in the first, the contract between the author of the document and its recipient takes place through a third party specifically authorized for this purpose to carry out the intermediation activity, thus acting as a real notification agent, while in communication it is the author of the act himself who contacts its recipient[6].
We will have a way, from here shortly, to focus on these specific and fundamental aspects addressed by the Court.
Here I limit myself to observing that, just an abstract reflection, disconnected from concrete practice, could today derive an interpretative canon from the art. 6 L. n. 212/2000 that is worth compensating, on a different level (that of remission in terms), the gap between legal knowledge and actual knowledge.

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2. Problematic aspects
Even though there are many reflections that the decisions in question prompt, we will limit ourselves to addressing the issue of the recommended information in the procedure concerning the collection of social security credits. Indeed, among the problems still open, of great interest is the one relating to direct notification of completed stock[7].
On point, l’art. 30 D.L. n. 78/2010 It expected to <<the debit notice is notified as a priority via certified email to the address resulting from the lists required by law, or subject to any agreement between the municipality and INPS, by municipal messengers or municipal police officers. Notification can also be carried out by sending a registered letter with acknowledgment of receipt>>.
Furthermore, it is necessary to bear in mind the fact that the aforementioned art. 30 D.L. 78/2010 which introduced the debit notice, he also predicted, to the paragraph 14 that <<For the purposes of this article, the references contained in current regulations to the role, the sums registered in the register and the payment notice are intended to be made for the purposes of recovering the sums due for any reason to the INPS to the enforcement order issued by the same Institute, consisting of the debit notice containing the order to fulfill the obligation to pay the same sums entrusted for recovery to the collection agents>>.
Well, l’art. 26 the D.P.R. 29 September 1973, n. 602, regarding the methods of notification of the folder, foresees, to the last paragraph that <<in the cases provided for by the art. 140, of the Code of Civil Procedure, the notification of the payment notice is carried out according to the methods established by the art. 60 of the decree of the President of the Republic 29 September 1973, n. 600, and is to be carried out on the day following the day on which the notice of the deposit is posted on the municipal notice board>>.
This place, the Constitutional Court intervened on this provision[8] which declared the contested third paragraph to be unconstitutional (corresponding to the fourth paragraph currently in force) dell’art. 26 the D.P.R. n. 602 of 1973 in the part where it provides that, <<In the cases provided for by the art. 140 of the Code of Civil Procedure, the notification of the payment notice is carried out according to the methods established by the art. 60 the d.P.R. 29 September 1973, n. 600>>, instead of: <<When there is no residence in the municipality in which the notification must be carried out, office or company of the taxpayer, the notification of the payment notice is carried out according to the methods established by the art. 60, first paragraph, paragraph and letter e), the d.P.R. 29 September 1973, n. 600>>.
As a result of this pronouncement, in cases of unavailability “relative” (that is, in the cases referred to in the art. 140 c.p.c.), will be applicable, with regard to the notification of payment orders, the provisions of the last paragraph of the same art. 26 the D.P.R. n. 602 of 1973, by virtue of which – as seen – <<As far as it is not regulated by this article, the provisions of the art. apply. 60 of the aforementioned decree>> n. 600 of 1973 and, then, based on the interpretation given to this legislation by living law, those of the art. 140 c.p.c., to which the line of the first paragraph of the art also refers. 60 the D.P.R. n. 600 of 1973.
Ma, unlike this hypothesis, the Constitutional Court itself[9], regarding notification of tax bills, considered that in the case of "direct" notification pursuant to art. 26, first paragraph, under consideration here, there is a higher level of knowability – that is, of possibility that it can be achieved, for the notifying party, actual knowledge of the document - given the delivery of the package (as well as to the recipient himself, also alternatively) to anyone entitled to receive it.
The clarification should lead us to believe that the Consulta intended to refer to the notification which was however completed with the delivery of the document to one of the persons authorized to receive.
About it, the Court of Cassation has indeed observed that, in the event of non-delivery to the recipient's address of a package subject to the regulations of ordinary registered letters - in non-direct but analogical application of the regulations provided for AG registered letters in the article 8 the law 890/1982 – the notification is considered to have been carried out ten days after the date of issue (i.e, from the date of entry, certified by the postal agent, in the recipient's mailbox) of the notice of storage... or from the date of collection of the package if earlier[10].
In short, the most significant differential feature of the simplified notification concerns the failure to provide notification of notification (c.d. CAN) in the event that the package is not delivered directly to the recipient and in the more specific case of delivery of the package to the doorman.
The postal operator in fact, after having delivered the envelope and completed the acknowledgment of receipt by having it signed by the person found at the recipient's domicile, shall send it to the notifying collection agent, but does not send the debtor any communication of the notification, unlike what is generally prescribed by the art. 7 L. n. 890/1982 for notifications via the postal service of judicial documents and art. 60 the d.P.R. n. 600/1973 regarding notice of assessment.
3. Final observations and future prospects
Even if the Constitutional Court has specified that in the premises of the decisions in question it has considered illegitimate the reduction of guarantees for the recipient when the document is not delivered and therefore one cannot have the indispensable reasonable presumption of <<actual knowledge>> of the same, However, the same Court did not dispel doubts about the constitutional legitimacy of the direct notification procedure by post in the event of complete storage. The question is not merely academic, as the taxpayer may not actually receive the inventory notice[11].
It happens often, in practice, that the acknowledgment of receipt in question is not signed by the taxpayer, or by the subjects entitled to receive it; while, of the deed being stored at the post office, There is no provision for sending the registered letter to make the taxpayer aware of this.
A first jurisprudential direction in stating that for simplified notification the sending of the "informative" registered letter (the second) it is not an essential fulfillment - as the art. 60, comma 1, b-bis letter of the D.P.R. n. 600/1973, introduced by the art. 37, comma 27, letter to) of D, L. n. 223/2006, which foresees it, concerns the notification carried out by municipal messengers or special messengers authorized by the tax office - it makes no distinction and refers not only to the case of delivery of the folder to a person other than the recipient, but also to that of non-delivery due to temporary absence or lack thereof, unsuitability or absence of persons authorized to receive it, therefore precisely to that of relative unavailability[12].
In this regard, the Supreme Court notes that the simplification inherent in direct notification, although it involves a deviation from the ordinary notification procedure via the postal service, nevertheless it guarantees the recipient an effective possibility of knowing the payment slip, since with the acknowledgment of receipt the postal operator, in synthetic form, provides proof of delivery of the package to the recipient or to the consignee entitled to receive it.
The different notification process is explained by the diversity of the cases compared, making direct notification via the postal service a more agile and simplified procedure, to protect tax reasons of pre-eminent public interest.
Anyhow, any evaluation of the reasons given by the recipient of the "direct" notification who assumes not to have had actual knowledge of the act will be left to the prudent evaluation of the judge (despite having achieved legal knowledge) for reasons not attributable to him in order to accommodate, or not, the request for reinstatement.
However, the interpretative orientation of the Court of Cassation just mentioned does not seem to consider that the case examined by the Constitutional Court concerned a hypothesis of receipt of the package containing the folder by the doorman of the building; the Constitutional Court did not actually take into consideration the case of complete storage in the direct notification by post of the folder, and moreover the cases in which insufficient guarantees for the notifier can be identified are generally related precisely to formal requirements of the notification procedure, therefore integrating the legal knowledge of the act, or the cases in which the document was not delivered to a person in direct relationship with the recipient and his domicile, and then called to inform the latter (the latter hypotheses in which a reasonable presumption of actual knowledge of the act can be considered to exist).
It is therefore necessary to doubt the regularity of the direct notification procedure by ordinary mail in the event of complete storage, also in consideration of the fact that it does not include the so-called. CAD, i.e. the communication of the deposit at the post office.
As for the recommended ones “ordinary”, on closer inspection, the sector regulations do not provide for the sending of the notification of the deposit to the interested party by registered mail, but it simply states that the recipient receives a “inventory notice”[13], which is normally placed in the mailbox and which indicates the post office where the collection can be made.
From this perspective, it may be interesting to note that often the postal agent, that you do not give the package to anyone, when depositing it in the office he simply adds the wording “adv.” (which stands for "warned"). But it is a generic and uncontrolled indication, which in terms of guarantees cannot take the place of sending and receiving a formal information communication.
In this regard the Constitutional Court, sentence no. 346/1998, had already observed that “the proper function of notification is to bring the document to the attention of the recipient, in order to allow the establishment of cross-examination and the effective exercise of the right of defence. It is naturally up to the legislator, in the balance between the interests of the notifier and that of the notifier, determine the ways in which this aim can be achieved, also identifying the remedies to prevent the notifier's right to take legal action from being paralyzed by personal circumstances – such as absence from home or office – concerning the recipient of the notifications …. in any case, there does not seem to be any doubt that the discretion of the legislator encounters a limit in the fundamental right of the recipient of the notification to be placed in a position to know, with ordinary diligence and without the need to carry out particularly complex searches, the content of the act and the object of the procedure instituted against it, since the recipient's right of defense cannot be reduced to a purely theoretical guarantee of knowability of the document notified to him" [14].
From this perspective, a further consequence arises regarding the necessity or otherwise - as regards proof of the completion of the notification procedure in case of relative unavailability - of producing the acknowledgment of receipt in court, proving the actual receipt of the registered letter communicating the deposit at the post office (c.d. CAD), or its shipment. About that, it is still necessary to highlight the existence of conflicting jurisprudential guidelines on the regulation of notification by post in the peculiar case of temporary absence of the recipient.
In any case, this interpretative conflict that arose between the simple sections was overcome with the intervention of the United Sections which established that “On the subject of notification of a tax or procedural document via the postal service according to the provisions of Law. n. 890 of 1982, if the document being notified is not delivered to the recipient due to refusal to receive it or due to the temporary absence of the recipient himself or due to the absence/unsuitability of other persons to receive it, proof of completion of the notification procedure can be given by the notifier exclusively through the judicial production of the acknowledgment of receipt of the registered letter which communicates the deposit of the document by notifying it at the post office (c.d. CAD), for this purpose, proof of dispatch of the registered letter itself is not sufficient“[15].
Much of the subsequent jurisprudence has conformed to the direction expressed by the United Sections, according to which in the absence of delivery by one's own hands or to subjects entitled to receive the document and in the absence of the activation of further obligations for notifications to the untraceable, the notifications made by INPS, hesitate with the completed stock, cannot be considered regular[16].
Nonetheless, resistance remains, motivated by an alleged diversity of factual assumptions. Analyzing the position taken by jurisprudence in the tax sector[17], indeed, the outcome was exactly the opposite, since I am discussing the need for the simple sending or receipt of the aforementioned registered letter, however, the Court considered that the notice was not due, not only in the case of delivery to persons authorized to receive the document, but also in that of non-delivery (simplified notification failed).
Once again the Supreme Court of legitimacy reiterated that, In the present case, However, an effective possibility of knowing the file is guaranteed to those who notify it, as, despite the relata being missing, there is the completion of the acknowledgment of receipt by the postal operator who, in synthetic form, provides proof of delivery of the package to the recipient or to the consignee entitled to receive it.
However, if we want to respect both the warning of the Constitutional Court and the just reported principle of the United Sections, it should be concluded that the simplified notification proper, that is, carried out by the collection agent according to ordinary postal regulations, it should be admitted only in cases where delivery of the document is possible.
According to the doctrine that dealt with the issue[18], The consideration that art. 26, comma 1, second part, expressly mentions the receipt of the (prima) registered envelope from one of the subjects indicated in the second paragraph or from the doorman of the building where the home is located, the office or company, dictating the rules of relative unavailability in another paragraph (the fourth).
In other words, the simplified notification by the collection agent should be considered legitimate only in the presence of this eventuality, while in the case (of relative or absolute unavailability) where delivery to no one is possible, L should continue to apply. n. 890/1982 and in particular the art. 8 of the same, which regulates notification by post through judicial officers or municipal messengers or authorized special messengers.
Reasoning differently, the risk that the debtor will incur, without his fault, the forfeiture of the opposition to the role is immanent and unjustifiable., with notice of forced execution, not contesting the notice or charge notice within the prescribed forty days due to the fact that the title has never actually entered the sphere of knowledge.
It is true that reasons of public interest can legitimize facilitated forms of notification, but there is an insurmountable limit to the discretion of the legislator, which can never prejudice the fundamental right of the recipient of the notification to be able to know, with ordinary diligence and without the need to carry out particularly complex searches, the content of the act and the object of the procedure instituted against it, since the recipient's right of defense cannot be reduced to a purely theoretical guarantee of knowability of the document notified to him.
To conclude the examination of the simplified notification it should be noted that, in social security matters, with interlocutory order no. 28455 of 30/09/2022 the sixth section of the Supreme Court recently considered the question relating to the importance of the recommended nomophylactic information, once again urging a more in-depth examination of the opposing orientations.
We wait, therefore, a new intervention by the Court of Cassation, intervention that could finally provide clarity and fill the regulatory gaps that still exist regarding the direct notification of tax documents.
Recommended volume

Contribution dispute with INPS

This volume, with a legally rigorous but at the same time practical approach (through the proposal of appeal models), It presents itself as a valid tool for professionals (employment consultants, lawyers, accountants) who assist companies or self-employed workers in a preparatory phase both in preparing and implementing a valid defensive strategy (preventive, in an administrative or judicial setting) towards INPS.
The first part of the work guides the professional within the framework of the matter at a regulatory level, in the division between the various managements (fixed-term work, apprenticeship, intermittent work, maritime work and former IPSEMA, journalistic, of procurement, occasional services and self-employment) and in the analysis of various institutions such as inspections, access to documents and alternative tools to litigation.
The sanctions that INPS can impose are addressed, the collection system and possible protections. Finally, the general part illustrates the formation mechanisms of the DURC, the differences and the protection tools both against the external DURC, than against the internal one until reaching the negative DURC and the loss of contribution benefits.
The special part examines the significant cases of the most relevant INPS managements: AGO, Agricultural Management, Management of artisans and traders (examining cases such as family assistants, the double registration of the SRL administrator, the worker members, the cancellation of the company liquidator, the craftsman in fact, holiday home managers and b&b).
The most important issues of Separate Management are explored in depth: those enrolled in the professions, the commencement of the prescription, the income limit of euros 5.000, pensioners, athletes not registered with the ex-ENPALS management.
The last chapter, finally, examines the former ENPALS managements, providing a framework for these particular managements e, then, specifying issues relating to performing artists, to the transfer of the right to image and the social security obligation of the authors of literary or other works.
The volume is enriched by a useful set of technical-operational material available online.

Paolo Maria GangiLL.M., Lawyer registered with the Rome Bar Association; carries out its professional activity mainly for Italian SMEs in the field of social security litigation, national and international contracts, privacy and compliance in general. He has published several articles in the legal field. Giuseppe Miceli obtained the qualification to practice as a lawyer in 2008, at the Court of Appeal of Rome. He teaches at universities and business schools. He is Editorial Editor and Author of numerous volumes and essays on Anti-Money Laundering and Privacy. Roberto Sarra practiced law at the State Attorney General's Office and is a member of the Rome Bar Association, with qualification to practice before the Higher Jurisdictions. He carries out his professional activity mainly in the field of labor law. He teaches at the Umbrian School of Public Administration and LUMSA Università Libera Università Maria Santissima Assunta.

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Giuseppe Miceli, Paolo Maria Gangi, Roberto Sarra, 2021, Maggioli Editore

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[1] Cfr. Civil Court of Cassation, sez. WE, order 04/06/2020, n. 10585: “the notification of the payment request, carried out pursuant to art. 26, comma 1, second part, the d.P.R. n. 602 of 1973, by direct sending, by the dealer, by registered mail with acknowledgment of receipt, constitutes an alternative notification method to that of the first part of the same provision. It is finalized on the date indicated in the acknowledgment of receipt signed by the recipient or consignee, without the need to draw up a specific notification report, nor send any registered letter of information to the recipient, applying the rules of the postal regulation relating to registered mail and not those relating to notification by post pursuant to law no.. 890 of 1982; among the many, in the same sense, Civil Court of Cassation, sez. T., order 11/04/2019, n. 10137; Cass., Sez. 6-5 civ., n. 10037 of 10/04/2019; Cass., Sez. 6-5 civ., n. 29710 of 19/11/2018; Cass., Sez. 6-5 civ., n. 28872 of 12/11/2018; Cass., Sez. L, n. 19270 of 19/07/2018; Cass., Sez. 5, n. 8293 of 04/04/2018; Cass., Sez. 6-5 civ., n. 12083 of 13/06/2016.
[2] Scroll theme v. L. LOVECCHIO, The executive assessment sent by registered mail was rejected, The Sun 24 Ore, 1July 2019; G. RUSSO, Without a notifying agent, the immediately enforceable assessment is non-existent, www.iltuotributarista.it, 21 March 2017.
[3] Scroll theme v. M. VILLANS, Direct notification of tax bills, www.diritto.it, 25 June 2018.
[4] As, Constitutional Court, judgment 23/07/2018, n. 175: <<in the case of direct notification, there is a sufficient level of knowability – that is, of possibility that it can be achieved, for the notifier, actual knowledge of the document "given the delivery of the package (as well as to the recipient himself, also alternatively) to anyone entitled to receive it, so that the "mandatory limit" of the legislator's discretion is not exceeded and the right of defense of the recipient of the notification is not compromised>>
[5] You are a science, among the many, Civil Court of Cassation, sez. T., order 20/06/2018, n. 16237; Cass. n. 5822/2021; n. 2229/2020; n. 946/2020; n. 19575/2019; n. 10037/2019.
[6] So C. GLENDI, Notification of documents <<impoesatives>> and precautionary protection related to them, in Tax Law and Practice, n. 3/2011; v. also C. GLENDI, <<Luci>> and <<ombre>> on the Maneuver 2010, Tax Courier n. 22-2010.
[7] Cfr. R. GARGIULO, Notification <<direct>> by post of the payment slip, www.treccani.it, 2019.
[8] Cfr. Constitutional Court, No judgment. 258/2012. With specific reference to the notification of payment orders relating to social security debts according to the ordinary procedure via the postal service pursuant to law no.. 890/1982 – the Constitutional Court considered it unreasonable that the notification of the title in cases of relative unavailability, provided for by the art. 140 c.p.c., can happen (ex art. 60 the D.P.R. n. 600/1973) by simply posting it on the municipal noticeboard, according to methods based on a typical legal criterion of knowledge of the file, rather than according to the principle of actual knowability of the act.
[9] V. Constitutional Court, No judgment. 175/2018 cited.
[10] You have him, cf.. Cassation n. 5347/2018 e n. 19958/2017; according to, cassation, n. 4049/2018, with note from M. SANCES, Tax notice in stock: what are the deadlines for appealing? www.altalex.com, 16 marzo2017; v. also Court of Cassation n. 717/2017; 2047/2016; 21281/2015; 18643/2015; 15650/2015.
[11]On the other hand, failure to sign the acknowledgment of receipt of the uncollected document could even determine the legal non-existence of the notification due to lack of legal knowledge of the document, given that the provisions governing the ordinary postal service, differently from what happens in the notification by post based on the art. 8 of the law. n. 890/1982, do not provide for the completion of the notification for "completed storage".
[12] V. Cass. n. 9990/2022; n. 6810/2022; n. 5700/2022; n. 2365/2022; n. 36193/2021; n. 10131/2020; n. 26592/2019; n. 12181/2013.
[13] He DMs 9.4.2001 on the postal service does not contain a provision similar to that of the art. 8 comma 4 L. n. 890/1982, limiting itself to the art. 49 to foresee the storage terms as follows: <<Undelivered mail, where applicable, remains in storage at the distribution office for the time indicated below starting from the failure to deliver: simple mailings: ten days; send for signature: thirty days. The storage service, where resulting from non-delivery, may provide for the payment of a fee. Expired storage terms, if return to the sender is not possible or necessary, the consignments are destroyed>>.
[14]Cfr. Constitutional Court, judgment 23/09/1998, n. 346.
[15] Cfr. Civil Court of Cassation, SS.UU., judgment 23 February - 15 April 2021, n. 10012, with which the United Sections of the Supreme Court clarified the regulation of notification by post in the peculiar case of temporary absence of the recipient.
[16] As, Court of Rome section. III, No judgment. 3742/2020. In terms, Court of Udine, judgment 17/06/2021, n. 48, thus maximized: “The direct notification of the dealer by registered mail with return receipt is valid only if received by the recipient or by any of the persons entitled to do so according to the postal regulations. In case of unavailability of the recipient, since the legislation does not provide for notification of deposit by registered mail but only a notice of storage, and since this formality is unsuitable both for making the dies a quo for any opposition start to run in certain terms and for ensuring, as provided for by the art. 6 of the Taxpayer Statute, actual knowledge, the concessionaire will have to activate the further requirements for notifications to those who cannot be reached".
[17] V. Civil Court of Cassation, sez. WE, order 10/04/2019, n. 10037.
[18] Cfr. V. TODARO, Opposition to the forced recovery of social security contributions, Pacini Legal, 2022.
 

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