The Judicial Creation of a General Anti-Avoidance Rule Rooted in the Constitution

In this article the authors discuss recent decisions of the Italian Supreme Court, wherein the Court determined that a general anti-avoidance rule exists under Italian law, which stems from the ability to pay principle in Art. 53 of the Constitution. The authors point out the numerous problems resulting from the judicial creation of such a pivotal provision, including the fact that it potentially violates other constitutional provisions and usurps the legislator’s jurisdiction.