La riforma dell'abuso del diritto in ambito tributario

This thesis concerns the reform of the discipline of the abuse of right in the Italian tax law. \nThe work starts from the history of the subject and, especially, of the discipline development and the different opinions of the jurisprudence, both Italian and European, through the years. The research, then, focuses on the new art. 10-bis of the law n. 212/2000 ("Statuto dei Diritti del Contribuente), introduced by d.lgs. n. 158/2015, which contains a general anti-abuse of tax law clause and provides substantial and procedural rules in order to prevent this kind of behavior and to regulate the relationship between taxpayers and the tax administration in similar situations. \nThe goal of the reform was to solve the multitude of problems that afflicted the previous system of protection against tax-abusive conducts: especially the art. 37-bis of the D.P.R. n. 600/1973 and the general principle of anti-abuse shaped by the Supreme Court but not codified until the 2015 reform. Specifically, the European Court of Justice in the case Halifax and other of 2006 affirmed for harmonized taxes, like the VAT, the existence of a general anti-abuse clause "in accordance with the general principle of Community law preventing abuse of rights". In 2008 also the Italian Supreme Court, even if formally no law prohibited the abusive behavior of taxpayers, recognized the subsistence of a general anti-abuse principle based on art. 53 of the Constitution, which first clause decrees: "Every person shall contribute to public expenditure in accordance with his/her tax-payer capacity". \nNevertheless, the new art. 10-bis does not overcome criticism and doubts that characterize the previous anti-abuse system. In fact, despite of some improvement - like, for example, the prevision of a specific and obligatory form of consultation between tax administration and taxpayer - most of the problems that afflicted the previous regulation are still current, because of the strong link between new and old rules. The new art. 10-bis is, clearly inspired by the prevailing jurisprudence developed in the previous system, inheriting difficulties and criticism moved to it by the prevailing doctrine, which, therefore, considers the reform unsatisfying. \nThe last part of the work is dedicated to the relationship between the abuse of tax law and close conducts like tax evasion and tax planning. Indeed, even if tax evasion, abuse and elusion are all unlawful and, therefore, subject to sanction by the administration. The new art. 10-bis, par. 13, declares that abusive and elusive conducts are not a crime (anymore) despite of tax evasion, always punished by the Italian tax fraud criminal legislation. So, it is easy to see how important is nowadays to distinguish those cases, although in concrete It is often difficult due to the complexity that typifies both this events.

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