In a dispute concerning the annulment of a decision of the Competition Council, the High Court of Cassation and Justice made some very relevant rulings of principle from a tax and civil procedural perspective.
The Court reiterated an essential principle, according to which, even if simulation as a legal transaction is lawful in itself, it is absolutely null and void when it is aimed at an unlawful purpose, such as circumventing the provisions relating to the application of the VAT regime.
With regard to the evidence taken in civil proceedings, the Supreme Court makes an essential distinction between judicial and extrajudicial expert reports, holding that judicial expert reports obtained formally and directly constitute evidence, whereas extrajudicial expert reports do not in themselves have probative value.
In the dispute, the company sanctioned by the Competition Council was trying to prove that it did not actually owe VAT on the transaction under scrutiny, because in reality the intention of the parties was for another company to be the supplier of the goods. The HCCJ ruled that the possibility of proving this simulation through the interposition of persons is irrelevant, as long as the legal transaction described would not have produced effects anyway, being affected by absolute nullity for illicit cause.
In relation to the issue of extrajudicial expert reports, the court assimilates an extrajudicial expert report to a mere document filed in the proceedings, noting that not every work presented by the party as having been carried out by an expert or specialist in the field in question has value as evidence. The practical consequence is significant since, as such, failure to take it into account does not result in failure to respect the right of defence as a ground of appeal.