L'effettiva applicazione del principio del contraddittorio nel procedimento amministrativo tributario tra svolte, ripensamenti e attese

Abstract

The right to a proper hearing in the administrative tax proceedings represents an essential element of the full exercise of the taxpayer’s right of the defense (art. 24 of the Italian Constitution), as well as of the implementation of the principle of good performance and impartiality of tax administration (art. 97 of the Italian Constitution), as recognized by the constitutional Court and the Supreme Court case law, in the light of European and international law. Taxpayer’s right to a proper hearing, as part of the rights of the defense, is a general principle of Community law which applies where the tax authorities are minded to adopt a measure which will adversely affect an individual. Lacking a general written clause, anyway its effective application raises important questions. It could be questioned whether the mentioned principle applies to all tax proceedings, regardless a regulatory and compulsory rule of law. European Court of Justice’s more recent case law, anyway, rules that an infringement of the right of every person to be heard before the adoption of an adverse individual measure entails the annulment of the decision taken at the end of the administrative procedure at issue only if, had it not been for such an irregularity, the outcome of the procedure might have been different. This line of reasoning given by the ECJ could be dangerous in order to guarantee the full effectiveness of the right to hearing, that is why we argue its implementation could be mainly referred to the Constitutional Italian principles.