RIVISTA DI DIRITTO TRIBUTARIO INTERNAZIONALE - Rdti.it

Sezione I - Dottrina
cedural institution will be specifically penalised because of its less incisive
and more procedurally burdensome characteristics (3S). Having noted
the different operative range of the two different fonns of interpellation,
a further distinction must be made from the standpoint of the effects
of the said cases. When the provisions of Art. 21 of Law No.
413/1991 are coordinated with the relative implementation regulations, it
can be seen that once the requisites of completeness and truthfulness are
met, the sphere of effectiveness of the relative opinion is limited to the
"taxation relationship", and in the context of the seat of litigation, if any,
it affects the distribution of the burden of proof laid "to the charge of the
party that has not complied with the opinion of the Committee". In the
light of this consideration, since the Financial Administration, as
c1aimant in a substantial sense, already bears the burden of proof in
court, the taxpayer, if he has not complied with the opinion expressed by
the consultant body, will become obliged to prove, in the course of the
proceedings, the unfoundedness of the taxation c1aim (36). Il does not appear
possible to extend the said effect to ordinary interpellation even with
regard to the content of Ministerial Circular No. SOIE of 2001 which,
when specifying that the binding nature of the Administration's interpretation
is operative only in relation to the offices, and "does not affect the
(35) S. La Rosa, "Prime considerazioni sul diritto di interpello", in '11 Fisco", 1992, p.
7948, suggests that the Committee should be made into "consultant structure internal to
tbe administrative system", hoping that tbe "two levels will be reduced to only one".
(36) On this point, see G. Zizzo, "Diritto d'interpello e ruling", in Riv. dir. trib., 1992,
I, p. 146, according to whom, since in Italy, as in France, there exists no presumption
of legitimacy in favour of the contested act, as the Office must provide the proof of
the events on which the tax claim is based, the Committee's opinion ,-,"ilI produce its
effect on the mechanisms that regulate the distribution of the burden of proof only if
and when the taxpayer has not complied with the opinion expessed by the Committee
itself. Along the same lines, see M. Buzzone, Interpello ordinario, speciale e "tax mling"
negativo: i differenti effetti dei pareri, in Corr. trib., No. 26/2001, p. 1923.
S. La Rosa, Prime considerazioni sul diritto di interpello, in Il fisco, No 32/92, p.
7950, remarks that "the party who does not intend to comply with the opinion bears
the burden of proving that the actual circumstance does not correspond exactly to the
one on which the Committee had expressed its opinion; which is equivalent to saying
(in positive terrns) that the opinion has a substantial effectiveness of its own, consisting
of the creation of a binding definition of the case as the situation appears from
the documents filed at the time".
Although the effects deriving from Art. 21 of Law No. 413/91 are essentially similar
to those of a legaI presumption, it appears preferable to believe that the judge, in
the absence of proof of the contrary, is not onliged to comply with what is foreseen in
the opinion, as he can ignore it and define the case in point in a different manner following
the sources foreseen in positive law. Contra Consolo, op. cit., p. 963.
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