prof. dr. pasquale pistone institute for austrian and international tax law damages and liabilities...
Post on 16-Dec-2015
215 Views
Preview:
TRANSCRIPT
Prof. Dr. Pasquale Pistone
Institute for Austrian and International Tax Law
www.wu-wien.ac.at/taxlaw
Damages and liabilities vs.
Italy and the Corte di Cassazione
Prof. Dr. Pasquale Pistone
pasquale.pistone@wu-wien.ac.at
2Prof. Dr. Pasquale Pistone
Institute for Austrian and International Tax Law
www.wu-wien.ac.at/taxlaw
Italy: an outstanding candidate for damage liability?
Italy never refers cases, seldom complies with tax decisions involving similar measures of other EU MSs
The Italian Tax Court of Last Instance (i.e. the Tax Chamber of the Corte di Cassazione) seldom applies the acte clair doctrine in the field of direct taxation, whereas it frequently does so in other tax domains
Italian domestic procedural law allows for ex officio application of law => Peterbroeck, 12: should also apply to European law
3Prof. Dr. Pasquale Pistone
Institute for Austrian and International Tax Law
www.wu-wien.ac.at/taxlaw
Is Italy carrying out a sufficiently
serious breach of European law?Yes
It is persistent and…consistent in disregarding the primacy of European law even in presence of settled ECJ case law
Examples: CFC rules, outbound dividends (under infringement procedure), personal deductions for non-residents, contributions to foreign pension funds (despite withdrawal of infringement procedure), etc.
No
There is not (yet) an established body of case law in the field of direct taxes
Thin Cap GLO, 121 and FII, 215: in a field such as direct taxation, the consequences arising from the freedoms of movement…have been only gradually made clear
4Prof. Dr. Pasquale Pistone
Institute for Austrian and International Tax Law
www.wu-wien.ac.at/taxlaw
Examples of sufficiently serious breaches in direct taxation
FII, 215: clarity on most aspects of inbound dividends was not achieved until Verkooijen, Lenz and Manninen achieved
Therefore, as to the Italian examples:
CFC => Cadbury Schweppes
Outbound dividends => Denkavit France
Personal deductions for non-residents => Gerritse
Foreign pension funds => Danner
5Prof. Dr. Pasquale Pistone
Institute for Austrian and International Tax Law
www.wu-wien.ac.at/taxlaw
Manifestly infringing the applicable law and direct taxation Köbler, 53: State liability for an infringement of Community law by
a decision of a national Court of last instance can be incurred only where the Court has manifestly infringed the applicable law
BUT Traghetti del Mediterraneo, 43: Such manifest infringement…is in
any event presumed where the decision involved is made in manifest disregard of the case-law of the Court on the subject
My view: manifest infringement exists in the presence of acte clair
TAX REPERCUSSIONS FOR ITALY: if the Corte di Cassazione does not – even ex officio – disapply the Italian domestic tax provisions in the examples given, Italy should be made liable for damages
top related