Paper's abstract

Christophe Mardière, de la, The Creative Power of the Tax Judge
Today, the dispute between autonomy and realism of tax law seems to be over: if the tax judge exerts a great creating power it is only to compensate for the shortcomings of the law. The role of the government Commissioners is an illustration of the position held by case law, despite the lack of "great cases". The judge thus alleviates the law when it is too harsh on the taxpayer, as with the presumptions exempting the administration from establishing a breach of law. The wide range of his creativity appears in the fiscal management of companies, through the notions of unfair management and abuse of process. But this creative power is restrained by the administration, which uses the technique of legislative validations to thwart the decisions it dislikes. The tax office restrains the judge with its own rules, derived from the administrative doctrine by which it tells its agents to follow, or not, case law.

Key Words : Tax law, autonomy, case law
t. 50, 2007 : p. 229-236

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