THE RULE OF LAW AND TAX LAW: THE CASE OF THE ABUSE OF LAW

The rule of law is in crisis, both in civil and public law matters. “Formal” law is loosing its prevalence and interpretative activity is becoming more relevant for the identification of the applicable discipline. Such phenomenon is expanding also in tax law, thus eroding the principle of reserve of law. The article analyses the crisis of the rule of law in tax law, focusing on the case of abuse of law/tax avoidance in the Italian tax legal system. That case highlights the growing importance of the courts as well as of the s.c. “technocracy” in shaping the content of the law in this field. Moreover, international soft law -albeit not binding- is often used as interpretative reference, showing its strong capability of directing national legal systems in their regulatory and tax policy choices. The whole picture becoming uncertain, the parties (tax administration and taxpayers) seem willing to replace the traditional rule of law with a rule of agreement, stemming from a coordinated and agreed interpretation and application of the law. In any case, the new environment urges for specific training for tax judges to overcome their scarce propensity to apply broadly values and principles developed at supranational level.