FROM FABLE TO REALITY: THE TAX PLANNING AND THE ROLE OF ABILITY TO PAY AND LEGALITY IN THIS DEBATE

Abstract

This article aims at critically analyzing the role of ability to pay and legality in the debate about the limits to tax planning. Two critical questions to the theory that there is a fundamental right to save taxes will be addressed: (i) first, the argument that the doctrine never argued that ability to pay or solidarity can be used to create tax obligations; and (ii) second, the argument that the role of legality is irrelevant to the tax planning debate. After the confrontation of these controversial questions, the article advances its analysis on the role that ability to pay and legality exert in the controversial delimitation of the limits of the taxpayer’s action to save taxes.