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G. Petrillo: Intetpellation in the Statute or Taxpayers' Rights
taxpayer, who is free to decide to act in a manner not in keeping with it",
does not make express reference to the consequences of possible noncompliance
with the administrative reply by the taxpayer himself.
On the matter of penai effecls, Art. 16 of Legislative Decree No. 74/2000
refers exclusively to the case foreseen in Art. 21 of Law 41311991 (37). In
(37) Art. 16 of Legis. Decr. No. 74/ 2000, entitled "Alignment \vith the Committee's
opionion for application of the anti-elusion laws", decrees that "No offence punishable
as per this decree is constituted by the conduct of a person \vho, having re­
COUI'Se to the procedure established by Art. 21 paragraphs 9 and IO of La\ .... No. 413 of
30th December 1991, has complied \ .. 'ith the opinions of the Ministry of Finance or
the Consultant Committee for application of the anti-elusion regulations established
by the said provision, or has performed the operations described in the request on
which assent by silence has come into effect.". On this point, see G. Bellabamba, G.
Cariti, /nltovi reati tributari, Milan, 2000, page 157, according to whom "the provision
of Art. 16 is solely in favour of the taxpayer and cannot be interpreted as intended
to sanction the penaI relevance of elusive cases not referred to the prior valuation of
the financial administration", following this Hne of reasoning, "to deem elusion equivalent,
sic et simpliciter, to a penally relevant evasion would be compIeteIy erroneous,
hence from this standpoint to, the judgement regarding the useless of the provision
commented on is confinned from this standpoint also." For more detailed consideration
of the provisions of Art. 16 of Legis. Decr. No. 74 of 10th March 2000, see P. Adonnino,
Parere del Ministero delle finanZI:! e del Comitato Consultivo per l'applicaz.ione delle
norme antielusive e rilevam:a penale dell'elusione, in Riv. dir. trib., 2/2001, page 239. In
particolar, with regard to the binding nature of the opinion in similar situations, the
author is of the opinion that: "the "precedent" mereIy constitutes one of the elements
of valuation, but not of the taxpayer's conduct for the purposes of excluding punishability,
but instead of the elusive or non-elusive nature of the circumstances under examination
and of the specific malice of evasion in his conduct", hence in accordancw
with the content of the Taxpayer's Statute, "as il is necessary, for the purposes of punishability,
for the subjective element of specific malice to be present, the good faith of
a person who complies with an opinion that produces the effects mentioned, even if
only in relation to those who have requested the interpellation, should not be refused
recognition".
C. Glendi, Lo statuto dei din'tti del contribuente, in COITo trib. n. 33/2000, 2415, in
relation to the combined provisions of paragraphs 2 and 3 of Art.ll, notes that if it is
considered possible to extend the scope of paragraph 3 lo the penai sanctions too, "this
might perhaps accredit a kind of penaI immunitity instar of what is already foreseen
by Art. 21 of La\\'! No. 413/ 1991 and Art. 16 of Legis. Decr. No. 74/2000 but without
the specific restrictions envisaged therein".
L Caraccioli, Gli effetti penali dell"'interpello ordil1an'o" dopo il regolamento e la circolare,
in "il fisco", No. 26/2001, p. 8958, consistentI)' with what he maintains in previous
writings (in particular, see "Interpello "ordinario" ed interpello "speciale":diversi
effetti speciali e necessità di coordinamento, ivi, No. 41/2000, p. 12375), after having obsenied
that the fiscal profiles cannot be considered identical \\'ith those of a strictly
fiscal nature, concludes that:" as regards the penai effects of ordinary interpellataion,
as Art. Il, paragraph 3, of Law No 212/2000 foresees the non-applicabilit), of penalties
in the case that no reply is given, as this constitutes assent by silence \ .... hich prevents,
aIready from the objective standpoint, any penaI consequence \vhatsoevec as
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