Abstract
With regard to the burden of proof (or of demonstration), the general anti-avoidance rule set out by Art. 10-bis of the Charter of Taxpayer’s Rights carries provides for a distribution between the parties to a legal proceeding, since it attributes to the Tax Authority the demonstration of the recurrence of the elements referred to in paragraphs 1 and 2, and to the taxpayer the demonstration of the non-tax reasons referred to in paragraph 3. As to the possibility that the Courts raise the abuse of law of their own motion, the provision set out by Art. 10-bis carries out a precise prohibition. On the first issue (burden of proof), the provision reflects the guiding principle set out by Art. 5, Lett. d), of delegating Law no. 23/2014, which prescribed to “regulate the regime of proof by placing on the Tax Authority the burden of demonstrating the abusive structure and any methods of manipulation and functional alteration of the legal instruments used, as well as their inconsistency with ordinary market practices, whereas it placed on the taxpayer the burden of proving the existence of sound non-tax reasons, alternative or concurrent, that justify the use of such instruments”. On the second issue (possibility that the Courts raise the abuse of law of their own motion), the provision not only lacks of a specific reference in the delegating Law but also collides with the case law regarding the application of the judicial principle prohibiting abuse of law.