Facts
On 3 April 2013, lawyer [A.] was appointed as court-appointed defence counsel for a defendant domiciled abroad. After the indictment was issued, but before the first-instance trial was held, the defendant appointed a private defence counsel, thus terminating the court-appointed mandate. In a decision of 9 December 2013, the President of the Correctional Court of Lugano ruled on the fee note submitted by the lawyer, not recognizing the value added tax (VAT).
The lawyer appealed this decision to the Criminal Appeals Court of the Ticino Cantonal Court of Appeal (CRP), which, after requesting the Federal Tax Administration (FTA) to express its opinion on the appeal, dismissed the appeal in a judgment of 14 April 2014, confirming that the services provided by the lawyer are not subject to VAT.
Against this judgment, lawyer [A.] filed an appeal in criminal matters with the Federal Supreme Court, requesting an increase of 8%, corresponding to the VAT, of the amount recognized as compensation for fees and expenses.
Considerations
The Federal Supreme Court upheld the appeal and remanded the case to the previous instance.
According to the Federal Supreme Court, the services of a lawyer, which do not fall within any of the categories listed in Art. 8 para. 2 of the VAT Act, are subject to the principle of the place of the recipient (Art. 8 para. 1 of the VAT Act). However, in the case of court-appointed defence, the recipient of the defence counsel's services is not the defendant, but the State.
Indeed, with the appointment of court-appointed defence counsel, a special…