DECISION N.2432/2024 OF THE ITALIAN SUPREME COURT

Italian Supreme Court renders judgment on transfer pricing issues and the following principles of law can therefore be expressed:

• OECD recommendations do not fit into the hierarchy of regulatory sources, but they only provide aids and operational methods (technical standards technical standards) for the specific implementation of legislative or wide-ranging regulations (elastic rules) such as the expression of ‘customary terms’, ‘normal price’ and others.
• Of the various criteria provided by the technical standards it is up to the interpreter of the various criteria provided by the technical rules to consider the criterion that best relates to the case in question bearing in mind the purpose pursued by the rule.
• The reasons for the choice of calculation criterion or mathematical model and the the motivation concerning the choice of calculation criterion or mathematical model is scrutinized by the judge on the basis of the arguments which are reported in the tax assessment.
• The motivation on the choice of calculation criterion while it can be reviewed in the court of legitimacy through the censure of violation of the law, identifying with precision the defect of subsumption of the judge of merit and indicating at the same time the alternative criterion considered to be more appropriate to the concrete case.

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