La aplicación de la norma tributaria defraudada y el principio de proporcionalidad: un análisis comparado

Abstract

The principle of proportionality can be defined as a key criterion, of European origin, to guide the exercise of official authority; it consists in the balancing of conflicting interests and in the preference of the instrument minimum and appropriate to attain the required result from the legal system.

The principle of proportionality applied to “valid economic reasons” means that the practice of declaring unenforceable the operations for fear of tax avoidance is disproportionate, because the medium is disproportionate to aim, especially in the case where the set of operations relates to future events but referring to previous operations.

The comparison with the Spanish rule is very exciting, to the purpose of this investigation, because in the reformed anti-avoidance clause combines two different settings: the Germanic setting regarding abuse of legal forms and the Anglo American setting focused on the role of the economic substance.