The Firm advises clients on the risk of challenges based on the abuse of law in tax matters, particularly in connection with extraordinary transactions, business reorganizations, intangible assets, and real estate operations. We also assist clients in mitigating such risks, drawing on the most recent case law and on the experience gained through our defence work in tax litigation. We provide assistance in ongoing tax investigations, including the exercise of the right to be heard through the submission of clarification requests aimed at preventing potential challenges and demonstrating the absence of any undue tax advantage. In this context, we substantiate our position by determining the taxes due under a correct interpretation of the provisions and principles alleged to have been abused, and by demonstrating that the taxes paid are consistent with such proper interpretation. We also reconstruct the legitimate economic and financial grounds underlying the transactions, relying on direct interaction with the company’s management and with the personnel involved in the relevant operations.
Additionally, the Firm provides representation and defence in tax settlement procedures , as well as in self-review proceedings before the tax authorities, including cases involving alleged abuse of law and tax mediation procedures. Our goal is to ensure that any reduction of the tax claim outweighs the risks associated with litigation, through the correct determination of the taxes due and by demonstrating the unenforceability of the positions asserted by the tax authorities.
The Firm provides advisory and representation services through the preparation of studies and legal opinions, as well as through expert advocacy in tax ruling procedures and at all stages of tax litigation before the Tax Courts and appellate courts, ensuring the highest standard of defence through the formulation of arguments and procedural objections grounded in the most recent national, European, and international case law.
The Firm has assisted, and continues to assist, leading banking, financial, industrial, and insurance groups in tax investigations and tax litigation involving allegations of abuse of law in tax matters, as well as in tax mediation procedures, including in relation to:
- mergers and reverse mergers, proportional and non-proportional demergers, intra-group transfers of receivables, pre-arranged transactions involving the assignment of assets to shareholders, leveraged buyouts and merger leveraged buyouts;
- acquisitions or transfers of shareholdings, shareholder withdrawals, offsetting of receivables, and the application of tax exemptions or reduced withholding taxes on dividends, interest, and royalties under the Parent–Subsidiary Directive, the Interest and Royalties Directive, and applicable tax treaties;
- cases involving real or artificial interposition of companies or individuals in the collection of income or in the conduct of business activities.
Our publications on Abuse of Tax Law:
- Gabriele Escalar, Nuovo delitto di infedele dichiarazione e irrilevanza penale dell’elusione, in Corriere Tributario, Corr. Trib. 2016, p. 1215 e segg.;
- Gabriele Escalar, Per una rilettura critica della nozione unionale di abuso del diritto fiscale , Corr. Trib. 2019, p.291 e segg.
