4. THE TAX LAW RESERVE IN TAXATION

CONSTITUTIONAL SOURCES 4.1 THE SOURCES OF TAX LAW Sources of law are all those acts or facts from which originate the legal rules key feature of any legal system is the plurality of sources The sources do not all have the same value as each other there is a hierarchy of sources report at the lower grade sources can not be in conflict with those of higher grade CONSTITUTIONAL SOURCES PRIMARY SOURCES The taxpayers' statute ordinary laws legislative decrees decrees regional laws SECONDARY SOURCES state regulations municipal regulations

The Constitution and the principle of legal reserve (Art The Constitution and the principle of legal reserve (Art.23 Constitution.) "No patrimonial or personal obligation may be imposed except on the basis of the law" Ratio It is an expression of the Anglo-Saxon derivation principle of "No taxation without representation" It performs a guarantee function: only Parliament, as a body constitutional representative of the popular will, has the power to impose a provision that limits the property and individual freedom of the individual

Concept of law The term "law" contained in Article 23, means any legal act having the force of law : Government decrees Legislative decrees regional laws

Relative nature of the legal reserve The reserve of law in art. 23 of the Constitution is satisfied as long as the law (...) lay down the core elements of taxation, although it defers to secondary sources or administrative power specification and integration of this discipline the law does not necessarily contain the entire discipline of the tax, but only its essential elements active and passive subject; presupposition; tax base; top rate

Ministerial practice and soft law Ministerial Resolutions Ministerial circulars Ministerial circulars No sources of tax provisions Internal rules to financial offices They are intended to clarify the meaning and scope of the tax rules and address of the 'activities of the offices. No external effects Non-application of sanctions

4.2. THE EFFECTIVENESS OF THE TAX PROVISION 4.2.1. IN TIME non-retroactivity GENERAL PRINCIPLE: The law does not provide that for the future (art. 11, preleggi) IN TAX MATTERS: art. 3, of the Statute of the taxpayer The tax provisions are not retroactive, changes to the periodic taxes are applicable from subsequent tax period   Prohibition of new taxpayers' obligations fixed before the sixtieth day of their entry into force EXCEPTION: Retroactivity of authentic interpretation rules if:  adopted by ordinary law only in exceptional cases  expressly qualified as such  

4.2.2. IN SPACE Effective area coincides with the territorial area on which unfolds state sovereignty Exclusivity of internal tax rules in the national territory only if respectful of Community law and international law (conventions against double taxation)

FREEDOM OF ESTABLISHMENT PROHIBITION OF FISCAL STATE AID 4.3. Tax autonomy of the regions and european community constraints PRINCIPLE OF EQUALITY Prohibition of discrimination based on ethnic origin (Art. 12 EC Treaty and Art. 14 of the European Convention on Human Rights FREEDOM OF MOVEMENT Freedom of movement of persons (art. 14, 39 and 61), services (arts. 14 and 49) and capital (Art. 14 and 56) FREEDOM OF ESTABLISHMENT PROHIBITION OF FISCAL STATE AID

REGIONAL FISCAL AIDS A measure which grants an advantage in only one part of the national territory, is not for that very selective in accordance with art. 87 of the EC Treaty. (ECJ, 06.09.06 Case C-88/03); Necessary political and fiscal autonomy from the central government; It assumes that the infra-State body is given the power to adopt, in the territory of competence, of certain favorable reduction measures and that in addition it assumes the political and economic consequences of such a measure; Check degree of political autonomy, economic and procedural facilitation measures of the national court (CGE, 11/09/08 Joined Cases C-428/06 to C-434/06)

It constitutes a violation of Articles It constitutes a violation of Articles. 49 and 87 EC Treaty, the introduction and maintenance of a national law (in this case, art. 4, LR Sardinia law no. 4/2006) which establishes a dependent tax revenue of tourist ports and drives pleasure whose taxpayers are identified in the physical and legal persons not resident for tax purposes in the territory (the EC Court Justice, sent. 17.11.2009 - due 168/08).

PROHIBITION TO INTRODUCE CUSTOMS DUTIES OR EQUIVALENT EFFECT TAX Prohibition on creating any pecuniary constituting, albeit minimal, a tariff barrier to trade, unilaterally imposed by a public authority of a Member State (Art. 23 EC Treaty - the principle freedom of movement of goods). The environmental tax imposed by the Region of Sicily, which affects the methane gas from Algeria, constitutes a charge having equivalent effect to a customs duty, is incompatible with European legislation on the free movement of goods (EC Justice Court, sent. 21.06.2007 - due C-173/05).

The marbles on fee applies to all Carrara marble that exceed the boundaries of that municipality, without drawing a distinction between marble whose final destination is in Italy and those intended for other Member States. For the purposes of classifying a charge having equivalent effect to a customs duty, the size of the regional authority that collects is irrelevant, since the tax constitutes an obstacle to trade in the internal market (EC Justice Court, sent. 09.09.2004 - Case C -72/03).