The Supreme Court recalled that the court is not bound by the conclusions of the expert’s report, which are merely elements of persuasion, just like other evidentiary means, and must be left to the judge’s discretion.
Thus, in order for the higher courts to be able to subsequently conduct a review of lawfulness in any means of appeal, the inferior court’s decision on whether or not to accept the expert’s conclusions must be motivated. This is particularly important when, reaching conclusions other than those contained in the report on the basis of the other evidence in the case, the court dismisses the expert’s report as unconvincing or upholds it, even though one of the parties had requested its dismissal.
In the present case, the plaintiff requested the annulment of a tax assessment decision concerning additional tax liabilities established following a tax inspection.
The High Court of Cassation and Justice annulled the judgment of the first court that had limited itself to reasoning only based on the defences formulated by the plaintiff and on the conclusions of the expert accountant’s report, favourable to the plaintiff. In reality, that report had also confirmed the findings of the tax inspection bodies, which were not favourable to the plaintiff. Thus, the flaw lies in the fact that the judge of first instance did not justify the dismissal or disregard of such expert findings.
Therefore, in such situations, it is necessary that the expert’s report be redone, in view of all the circumstances that have not been clarified, or even that a new expert’s report be prepared and that any additional evidence that may lead to the correct establishment of the factual situation and the discovery of the truth be taken into account.