With the all-important sentence no 54/42/11, the Tax Court of Milan says a sacred and fundamental principle: that the procedural guarantees that the prior contradictory and motivation is enhanced also apply to non-recognition of tax benefits not occurred because the transactions covered by the taxpayer in cases covered by Article. 37-bis of Presidential Decree No. 600/1973, but because they constitute abuse of the right, under the rule of case law built upon the existing art. 53 Constitution Further discussion on the ruling, signed by Francesco Tundo, is being published in Corriere Tax.
The practical problem is well known.
The law provides only for certain cases of tax avoidance (art. 37-bis) and it provides a special procedure, with the guarantees provided under penalty of nullity (after an adversarial procedure, the obligation to consider the reasons the taxpayer's duty to give reasons expressly on them, radical nullity of the investigation in case of violation).
The Court held (fiercely opposed by almost all the teaching) that can be disregarded other operations elusive, but not based on this rule on Article. 53 Constitution
Admission (not given that option) if the problem arose, at least, in such cases the taxpayer could enjoy the procedural guarantees provided for the possibility of circumvention coded.
say no would have elevated to the square of the reasons for doubts about the judicial solution. Not only could have been denying operations without the prediction of its powers by the law, in cases not provided and therefore can not be determined a priori, but even in such cases, the most uncertain and in need of guarantees did not apply and the hearing aids prescribed by law as may be expressly provided for and governed.
least the second port is avoided by the abnormal valuable decision under review.
it for real, is also based on a formal argument: it concerns a case of stamp duty and art. Would be invoked Article 37-bis. 53-bis of Presidential Decree 131/1986.
The Tax Commission, however, he adds - and the statement is clearly very important in terms of principle - that the guarantees would apply, however, a clear violation penalty the principle of equality.
A fundamental principle, which could bring down many of the checks already issued for misuse of the law.
(Milan Provincial Tax Commission, Judgement, Sec. XLII, 21/02/2011, No. 54)
Source: IPSOA
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