RIVISTA DI DIRITTO TRIBUTARIO INTERNAZIONALE - Rdti.it

G. Petrillo: Interpellation in the Stature or Taxpayers' Rights
which the reply is based (save in the case !hat the legai case has not been
accomplished); in the case of defective statement of grounds, it will be up
to the taxpayer to challenge the taxation act before the tax disputes judge.
certa mento tributario, in Boll. Trib. 1986, 1541 et seq, notes that the requisite of statement
of grounds does not only provide the base for the taxpayer's right of defence, but
should alos assure the impartiality of the administrative action, and above alI. serve
to give account of the substantial and effective observance of the procedural rules governing
the exercise of tax-Ievying power. According to the approach followed by AlIorio,
Diritto processuale tributano, Turin, 1969, page 393, there exists a generai principie
whereby: "no act can be produced by the public administration \vithout having obtained
for itself the proof of the circumstances that deterrnine its po\\'er to bring that
act into existence.". SubstantiaIJy in the same terrns, Moschetti, Avviso di accertamento
tributario e garanzie del cittadino, in AA.W., Procedimenti tributari e garanzie del cittadino,
Padua 1984, p. 66 et seq., who in the framework of an accurate regulatory survey
on the vanous forrns of assessment in the matter of direct taxes, maintains the position
whereby by the statement of grounds the office must, first and foremost, give
itself proof of the credibility and sustainability of the charges that will give rise to the
aet of assessment to be issued, as the activity of the Office regarding the statement of
the grounds for the assessment cannot take the concrete fonn merely of a summary
enunciation of the claim .. C. Glendi, Accertamento e processo, in BolI. trib. 1986, n. lO,
page 771, points aut that the statement of grounds, by reason of the variety of types
of assessment, does not consist essentially of a "provocatio ad oppenendum" and nor
can it be said to be limited to facilitating the taxpayer's defenee, but instead it constitutes
an essential element of the act and the measure, first and foremost, of the exercise
of tax-Ievying power". According to F. Tesauro, La motivazione degli avvisi di accertamento
ed i poteri delle Commissioni in una decisione ineccepibile della Commissione
Centrale in Boll. trib., 1983, No. 12, page 1029, the statement of grounds does
not consist of a merely fonnal task as the statement constitutes an essential guarantee
of the correet conduct and impartiality of the administration; from this standpoint,
a generic statement of grounds \Ilould reveal the absence of adequate investigation and
preparation, and, consequently, the arbitrariness of the decision-making authority. In
relation, in particular, to the so-called remedial effectiveness of defective statement of
grounds in the event of adequate defence developed by the tax-payer, see Muscarà,
Riesame e nnnovazione degli atti nel diritto tributario, Milan, 1992, page 186. Again on
this topic, without attempting to be exhaustive, Manzoni, Potere di accertamento e
tutela del contribuente, Milan, 1993, page 148 et seq .. ; Falsitta, Manuale di Din'tto tributario-
parte generale, Padua, 1999, page 454, who considers, with particular regard to
the statement of grounds per relazionem, that the mere abstract availability of the document
to which the act of assessment refers, gives rise, as it entails in fact a reduction
of the period allowed for contesting same, in the compression of protection for
the taxpayer ..
Art. 7 dello Statute of Taxpayers' Rights establishes that "the acts of the Financial
Administration are grounded in accordance with the provisions of Art. 3 of Law No.
241 of 7 Augustl990, eoncerning the statement of grounds of adrninistrative measures,
indicating the prsuppositions in fact and the juridical reasons that have given rise to
the Administration's decision".
Legislative Decree No. 32/200 l has confinned the need to indicate the presuppositions
in fact and the juridical reasons that have detennined the issue of the tax-Ievying
measure, and has not seen fit to repeat in the speeific taxation regulations the formula:
" ... in relation to the investigation findings" as indicated in Art. 3 of Law No.
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