A Partner Who Does Not Challenge the Assessment Pays in Full, Even if the Partnership Is in Court

According to the Italian Supreme Court, the mere pendency of proceedings brought by the partnership does not allow the partner to benefit from staggered collection

With Order no. 27173 filed on 19 October 2026, the Italian Supreme Court addressed a hitherto little-explored aspect of the relationship between partnerships and their partners in tax litigation. The issue was how amounts claimed from a partner who has not challenged the assessment notice served on them should be collected, where the assessment notice issued to the partnership is instead the subject of proceedings. The case concerned VAT and IRAP claimed from a partner of a de facto partnership as a jointly and severally liable co-obligor. The Court, however, extended its reasoning to assessments of income taxes attributed on a look-through basis, which is the area where the issue is of greatest practical significance.

To appreciate the scope of the decision, one must start from a now settled point, namely the necessary joinder of parties between the partnership and its partners. Since the income assessed against the partnership is automatically attributed to each partner in proportion to their share of profits, regardless of actual receipt (art. 5 TUIR), the Joint Divisions of the Italian Supreme Court (judgment no. 14815 of 4 June 2008) characterised the assessment as unitary. An appeal brought by the partnership or by just one of the partners, even against a single assessment notice, therefore inseparably concerns all the others, unless personal issues are raised. This gives rise to an original necessary joinder of parties under art. 14 of Legislative Decree 546/92, which requires all of them to take part in the same proceedings on pain of nullity. Even a partner who has allowed the time limit for challenging their own assessment notice to expire must therefore be joined in the proceedings brought by the partnership, although they can no longer contest the notice independently.

This procedural framework is the basis for the rules on collection pending proceedings, which do not provide for an automatic suspension but for payment graduated according to the outcome of the proceedings. Art. 15 of Presidential Decree 602/73 provides that taxes corresponding to taxable amounts assessed but not yet final, together with the related interest, are entered in the tax roll on a provisional basis for one third after service of the notice, while penalties are not due at this stage. Art. 68 of Legislative Decree 546/92 then governs subsequent payments, net of amounts already paid. Two thirds are payable after a first-instance judgment dismissing the appeal, and the balance after the second-instance judgment. If, on the other hand, the appeal is upheld, the excess must be refunded ex officio within ninety days of service of the judgment. Staggered collection, however, presupposes that the notice is not yet final, since an unchallenged assessment notice becomes final and allows the full amount to be collected.

Hence the question addressed by the Court. The partner, despite not having filed an appeal, remains a necessary party to the proceedings. It could therefore be argued that the pendency of the proceedings prevented their personal assessment notice from being regarded as final, limiting collection to one third in their case as well. Administrative practice on tax consolidation appeared to point in this direction, since art. 40-bis of Presidential Decree 600/73 expressly provides for necessary joinder between the consolidated company and the consolidating company. Circular no. 27/E of 6 June 2011 (§ 13.3) in fact allows staggered collection against both, irrespective of their actual participation in the proceedings.

However, the Italian Supreme Court rejected the argument in favour of the partner, reasoning on the finality of the personal assessment notice vis-à-vis its addressee. The Court acknowledges that such finality does not prevent the partner from benefiting from a favourable outcome of the proceedings brought by the partnership, because the preliminary relationship operates secundum eventum litis, with positive and negative effects for those who took part in the proceedings and “only positive effects for the joint parties who remained outside the proceedings”. Precisely because the benefit depends on the outcome, however, the mere pendency of those proceedings is not enough: it neither precludes the entry in the tax roll of the amount claimed under the unchallenged personal assessment notice, nor justifies the suspension of the proceedings concerning the payment notice. This does not infringe the partner’s right of defence, since service of the assessment notice put them in a position to defend themselves, and the finality of the assessment is therefore “the consequence of their choice not to appeal”. The inactive partner is thus exposed to paying the full amount immediately, and can benefit from the partnership’s success only once the judgment has become final and within the limits identified by the Joint Divisions, starting with the fact that amounts already paid cannot be recovered.

The solution is consistent with Italian Supreme Court judgment no. 6617 of 10 March 2021, which, in relation to VAT, had allowed the full amount to be entered in the tax roll against the jointly liable partner, where the assessment notice had not been challenged by the partnership, notwithstanding the appeal brought by the other partner. A clear practical lesson follows. A partner who wishes to benefit from staggered collection, request suspension under art. 47 of Legislative Decree 546/92 and obtain a refund in the event of a favourable outcome cannot rely on the partnership’s appeal, but must also promptly challenge their own assessment notice.