**3. The "right to be heard" in tax proceedings in Italian Supreme Court case law**

The Italian Supreme Court (ISC) has enhanced the "right to be heard", since the decision 29 July 2013, n. 18184, Joint Sections [9].

uncertain, about the outcome that the judgment would have had in the presence of a contra-

The Involvement of the Taxpayer in the Public Administration Decision

http://dx.doi.org/10.5772/intechopen.74866

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The supremacy of European law (EU), through the European Court of Justice (ECJ), has influ-

The supremacy of EU law is the key to understanding how taxation has evolved within the

The impact of ECJ case law on Italian taxation reveals a fairly extreme picture of the critical

The impact of ECJ case law on administrative tax practice within the framework of tax auditing and collection procedures involves aspects that can also be relevant from the perspective

From the perspective of ECJ case law, the principles of proportionality and suitability may be invoked to prevent unreasonable inspections, or the payment of guarantees that would not be needed to protect the interest of the tax authorities (based on the line of reasoning developed

Likewise, the ECJ regards the auditatur et altera pars principle as a general principle of EU law, which gives taxpayers the "right to be heard" before a tax measure affects their personal

Similarly, following ECJ case law, the duty of cooperation on the part of tax authorities should require them to reopen a final administrative tax act based on misinterpretation of (or a conflict with) EU law when this is allowed under national procedural law and the person directly affected has, in a timely manner, filed a complaint against such an act (Case C-453/00, Kühne

In this direction we can also consider the case law of ECJ 12 February 2015 (C-662/13) and the case law 3 July 2014 (C-129/13 and C-130/13) Kamino International Logistics BV and Datema

However, the jurisprudence cited above added a provision which could give rise to ambiguity, stating that the national court, having the obligation to ensure the full effectiveness of Union law, in assessing the consequences of an infringement of the right of the defense, in particular "the right to be heard", can consider that such infringement leads to the annulment of the final decision taken at the end of the administrative procedure only if, in the absence of

**4. The "right to be heard" in tax proceedings as a general principle** 

enced the exercise of national tax sovereignty within the European Union [12].

European Union from a purely national to a supranational dimension [13].

dictory procedure which in reality did not take place.

**of European law**

issues that arise in such a context.

& Heitz (13 January 2004, Para. 28).

Hellmann Worldwide Logistics BV.

of ensuring the protection of human rights [14].

by the ECJ in de Lasteyrie (C-9/02) 11 March 2004).

sphere (Case C-349/07, Sopropé (18 December 2008, Para. 36).

such irregularity, that procedure could have led to a different result.

With the decision n. 19667 and n. 19668 of 18 September 2014, the ISC reiterated the existence of the "right to be heard" even if tax laws have not at provided this right, as occurred in the case of the registration of a mortgage according to art. 77 D.P.R. n. 602 of 1973 to guarantee tax credits.

A further step forward in the definition of the problem came from the ordinance of ISC n. 527 of 14 January 2015, concerning the checks carried out at the office of the tax authority.

However, precisely with regard to the checks carried out at office of the tax authority, the subsequent sentence of ISC, Joint Sections, 9 December 2015, n. 24823, has changed its orientation.

The ISC, which reaches conclusions diametrically opposed to the previous decision n. 19667/2014, after a long excursus of the previous jurisprudence of the same Court, affirms that the guarantees provided by the art. 12, paragraph 7, of the law n. 212/2000 operate only in the presence of tax audits carried out where the taxpayer takes its activity and not in other cases. This is because there is a number of legislative provisions that prescribe the "right to be heard" in different times, but there is not an express legislative provision that provide in general the obligation of the "right to be heard" in every tax procedure.

The Court's thesis is not to be shared. This is because the widespread presence of norms that provide the "right to be heard" leads us to believe, where we proceed with an interpretation oriented by the art. 3 and 97 of the Constitution, that exists a general principle and that the plurality of provisions is linked to the need to provide different methods of contradictory procedure in relation to the specific tax assessment method adopted [10].

Furthermore, cannot be shared the Supreme Court's argument that the "right to be heard," which derives from the European legal system, is applicable only in the case of an investigation concerning the taxes harmonized.

In fact, the tax assessment notice, which concludes the proceeding, is normally based on facts that regard at the same time a tax claim both as VAT (harmonized tax) and as IRPEF (or IRES) and IRAP (taxes not harmonized). In the case of non-compliance with the principle of the "right to be heard", in presence of the same facts, would be issued in the same tax assessment procedure a partial, rather than total, judgment of the act.

Furthermore, cannot be shared the Supreme Court's argument that the "right to be heard," if not provided by law, is allowed only if, in accordance with the jurisprudence of the Court of Justice, it is shown that, in the absence of such irregularities, the tax procedure could be concluded with a different result [11].

This last statement raises a lot of perplexity, considering that the outcome of a dispute, according to the principle of legal certainty, cannot be entrusted to an assessment, inevitably uncertain, about the outcome that the judgment would have had in the presence of a contradictory procedure which in reality did not take place.
