Legitimacy in decision-making in tax Law: Some remarks on Taxation, Representation and Consent to Imposition

The legitimacy of decision-making in tax issues, which is one of the pillars of modern democracies and the functioning of States, has always been a problematic element, rich in facets. It seems pretty obvious today that, underlying the power to collect taxes, should be laws, approved by Parliament, and therefore the power in tax decision-making rests ultimately with elected representatives of the people. Instead, in actual fact, things are quite different, not only because in substance real tax decision-making is attributed almost entirely to the Executive Branch, and to the Government in particular, but also because, even in present times, examples are recurring of “virtual”, instead of real, representation. All this undermines and weakens the substance of the motto “no taxation without representation”. The article analyzes all these issues and consists of two main parts: the first part concerns the historical evolution of the motto, which is traceable back to the Magna Carta of 1215, through to its most accomplished feature, at the beginning of the American war of independence, during the second half of the 18th century. In the second part, the article highlights, through a series of concrete examples, the modernity of the motto and how it is applied today, in a multilevel legislative framework (European Union, States and local authorities). The essay ends with examples of represen- tation without taxation (as is the case of Italians resident abroad) and, conversely, of taxation without representation (as in the case of migrants resident in a Country like Italy). Finally, the paper focuses on the fundamental concept of consent to imposition.