La clausola anti-abuso prevista dalla direttiva ATAD: l’esperienza italiana

Abstract

The prohibition of abuse of law constitutes a regulatory principle of jurisprudential training that is constantly applied in tax matters based on an evolutionary path, articulated through a series of arrests by the European Court of Justice and the Court of Cassation. The principle was also regulated by a rule of legal source - art. 10 bis of the Statute of taxpayer rights - which has been in line with the jurisprudential orientation, providing substantive and, above all, procedural indications to better regulate their application. When transposing the ATAD Directives, the national legislator did not had to adapt to the provision concerning the obligation to introduce the anti-abuse clause, since the Italian tax system already had a regulation in that specific sector. Therefore, the legislator considered useless to introduce a new general anti-abuse rule since the current wording of article 10-bis of the Statute of taxpayer rights is compliant with the art. 6 of the ATAD directive.