Legal Presumptions in National Tax Systems (Italy and Belgium) and in EU Law

Date: 20 December 2013

Venue: University of Bologna, Faculty of Law Italy

Time: 9:00 AM

Organization / co-organization: Faculty of Law

PhD candidate: Claudia SanĂ²

Principal investigator: Adriano Di Pietro (University of Bologna) en Prof. Bruno Peeters (University of Antwerp)

Short description: PhD defence Claudia SanĂ² - Faculty of Law



Abstract

The thesis deals with the concept of presumptions, and in particular of legal presumptions, in the context of national tax systems (Italy and Belgium) and EU law.

The presumption embodies a concept traditionally considered only from the national point of view, within the framework of the theory of proof. According to a tradition which dates from Roman law, it refers to the inference which is drawn by the law or by the judge from a known fact to an unknown fact. Precisely depending on the source of the inference, presumptions are traditionally distinguished between presumptions of law and presumptions of fact. In the thesis, given that the perspective is the one of the relation between different legal orders, the focus is on legal presumptions. The aim is to give an insight into the national approach to the concept within the national tax systems of Italy and Belgium, and to construe the EU approach to the same concept. This, with a view of comparing them, verifying which conditions are set out at EU level as regards legal presumptions and ultimately testing some of the national tax law presumptions included into the Italian and Belgian legislation against such conditions.

Given that the general definition of  presumption result from the civil law discipline, in the first chapter the concept (main features, function, effects) is examined having regard to the national experience of France, Belgium and Italy, which are assumed as representative of civil law systems, and of the  United Kingdom, which is assumed as representative of a common law system. It is showed how, notwithstanding some negligible divergences, there is a common and shared concept of legal presumption, which is the point of departure for the examination from the fiscal and EU law point of view.

In fact, though the roots of the concept of legal presumption is in the civil law discipline, it shows several peculiarities in the field of taxation, wherein it operates exclusively to the advantage of the tax authorities due to the deficit of knowledge suffered by the latter as regards the relevant fiscal facts realized by the taxpayer. In the second chapter, legal presumptions in the context of the Italian and Belgian tax systems are examined, with a view to construe a national approach to the matter. To this end, at first instance the more relevant Constitutional Court’s decisions concerning national tax presumptions are examined, in order to catch up the parameters used for their evaluation.

Afterwards, some of the most interesting tax law presumptions included in the national legislation are examined, with a view of testing their consistency with EU law. In both of the Member States, indeed, there are several presumptions, either procedural (i.e. concerning the powers of control and assessment of the tax administration) or substantive (affecting directly the position of the taxpayer). Amongst these, there is a number of presumptive measures enacted in particular in the field of VAT (e.g. concerning the person liable to tax or the event giving raise to taxation) and Direct taxation (concerning cross-border situations: e.g. CFC rules, thin capitalization rules, transfer pricing rules, limitations to the deductibility of payments to low-tax States), some of which need to be evaluated in the light of EU law. The examination of the two national legal orders shows some differences. In the Italian system there has been an extensive debate concerning legal presumptions, due also to the numerous decisions of the Constitutional Court handed down on the matter, whereas so far there are few decision of the Belgian Constitutional Court. The overall approach to legal presumptions, however, is not different, and it shows how the parameter of evaluation is internal to the legal presumption itself, being the focus on the structure of the latter and on the consistency with the principle of reasonableness.

By contrast, at EU level the parameter is external, and is in turn embodied by the relevant EU right, principle or freedom at issue. The focus is on the effects of the legal presumption, and the latter is approved only in the extent to which it does not affect the regulation (for customs duties) or the model (for VAT and excise duties) designed at EU level or it is justified by an overriding reason in the public interest, but always on condition that such restrictions to the exercise of a EU right or freedom is proportionate to the aim attained. This results from the examination of the EU law context which is undertaken in the third chapter, and which pays particular attention to the case-law of the EUCJ in the domains of customs duties, VAT, direct taxation,

Finally, some conclusions are drawn, either with regard to the overall EU approach to legal presumptions compared to the national one and on the impact on the protection of the European taxpayer; or by testing some of the Italian and Belgian presumptive provisions that are suspect of not being in line with EU law.