Gli interessi giuridici sottesi agli strumenti di composizione delle controversie fiscali internazionali ed il (correlato) problema dell’effettiva tutela del contribuente nella direttiva 2017/1852 e nel d.lgs. 49/2020

The EU Directive n. 2017/1852, implemented in the Italian tax law framework by theLegislative Decree n. 49/2020, arises some issues concerning the scope of the juridicalinterests covered by procedures laid down by these tools, especially those of taxpayers.According to the Author, by the taxpayer side, it is possible to decline two different kindsof interest. The first is the one concerning the States’ wide transposition and implementationof the international procedures aimed at settling tax disputes in their two tiers. Indeed,only this full implementation allows the taxpayer to activate with the aim of settlingmatters related to a different interpretation or application of the provisions of bilateraltax agreements and conventions. Instead, the second interest concerns the content of theinstruments, meaning the rules of the procedures. Indeed, only these rules clearly definethe “role” of the taxpayer within those instruments. This is probably the key issue as tothe taxpayer side since it is still debated whether the taxpayer has to be considered as an“actor”, just like the States, or a mere “spectator”, within the settling of international taxdisputes. The above-mentioned Directive, although in the EU context, seems to strengthenthe taxpayer’s role, however, the path is far from to be concluded since its full participationin the procedure is still submitted to fiscal authorities’ will, and the prevalence granted tothe internal judgment (i.e. the “blocking effect” of the domestic res judicata) widely limitsthe taxpayer ability to fully exploit all the means made available by the internationalprocedures.