The Motive of the Tax Notice of Infraction and the Ratio Decidendi

towards a Necessary Approximation

Abstract

Adopting the method of bibliographical review, this article seeks to highlight the proximity of the signs of justification and motivation in the executive functional acts of the State (administrative and jurisdictional) and the direct influence of the notion of ratio decidendi on the meaning of these signs. Motivation or justification are brought as essential elements of individual legal acts and refer to the duty of public agents to elucidate, through reasons, the process of application and interpretation adopted when analyzing an act or past conduct of a third party. This duty is fulfilled by identifying, in an express, clear and coherent manner, the relevant points, thus understood as the arguments and elements of fact without which the conclusion indicated in the act (read, the ratio decidendi) would not be reached, in order to attribute a certain legal consequence to the act committed. This is an element that guarantees the control of administrative acts and jurisdictional decisions. Specifically in jurisdictional decisions, the motivation involves addressing the points raised by the parties, in light of the adversarial system and broad defense, unlike administrative acts, which are issued unilaterally.