L’applicabilità del principio del contraddittorio nel procedimento amministrativo tributario

Abstract

Over the years, the tax system reform determined a substantial change in the relationship between taxpayer and financial administration, within which the former has taken on a decisive role in the implementation of the tax claim. The progressive increase of all the obligations that are planned for the taxpayer, whose violations are sometimes severely sanctioned, has raised the problem of establishing what are the rights and instruments able to effectively counteract any illegitimate claims of the Exchequer, without the need to have recourse to the judicial authority. Among the instruments designed to protect the taxpayer, there is undoubtedly the procedural adversarial, which is to be understood as a means of preventive confrontation between the Fisco and the taxpayer, which is included in the procedural investigation phase prior to the issuance of the taxable act. In a similar context, the changes made to the tax system, including the discipline on assessments based on simple presumptions, have made it impossible to postpone the need to guarantee the effectiveness of the procedural adversarial to the various actors involved, with an evident deflationary purpose. The need to guarantee the effectiveness of the adversarial, implies that the interested party must be placed in a position to know, in a transparent and exhaustive way, before the decision is taken, the elements available to the administration and the reasons that induce to act against him; after all, from the Community system is derived the right to an effective participation, both in procedural and jurisdictional contexts. This work has as its object the analysis of the ways in which the procedural adversarial is applied in the Italian administrative system, with an in-depth focus on the tax proceeding. The analysis starts from the need to ascertain the existence of a general principle or a fundamental rule that gives the taxpayer the right to be heard before the conclusion of the procedure, in accordance with the provisions of art. 41, paragraph 2 of the Charter of Fundamental Rights of the European Union, which must be read together with Articles 47 and 48 of the same, and to the precious teachings that the Court of Justice has expressed on the subject, in order to guarantee the taxpayer the right to be able to express his own point of view on what will constitute the content of an act damaging of his own patrimonial sphere, anticipating in that way the exercise of the right of defense in the procedural phase, in a clear deflationary perspective. This theme, as is well known, represents a vexata questio that until now has engaged doctrine and jurisprudence in a debate that has been going on for some years, between signs of openness and changes of direction manifested by the United Sections of the Supreme Court, which hopefully will soon find the right legislative landing. [edited by Author]