Il diritto al silenzio in materia tributaria: dinamiche evolutive

Abstract

The principle nemo tenetur edere contra se, originally developed in criminal law where it bears express discipline, was later extended to tax law. This extension was the result of the interpretation of ius tacendi by the European Courts and, most recently, the Constitutional Court, as a corollary of the right of defense under Article 24 Const. as well as Articles 6 of the EDU Treaty and 47-48 of the CDFUE. In the light of the renewed attention to the guarantor content of international charters, recently translated also into the express reference to the canons of due process within the grounds of very significant Constitutional Court pronouncements, considerable interest assumes the search for the content of the right of defense in Art. 6 of the ECHR, also in the light of the persistent delay of European systems in the face of the guarantees contained in the Convention. The Italian legal system is characterized by the increasingly marked contrast between the principle that recognizes the taxpayer's right to engage in merely reticent behavior during the course of audits, limiting itself to negatively connoting only the refusal to produce the requested documentation, and the recent tendency to attribute relevance to the taxpayer's refusal to cooperate in the conduct of the audit activity. In the wake of these two trends, what can be said with certainty is that the taxpayer's right to remain silent should certainly be recognized to the extent that its exercise aims to ensure balance in relations with the tax authorities, preventing the taxpayer from seeing his or her right of defense restricted by reason of a position of hegemony on the part of the tax authorities.