Is there a case for tax exceptionalism in Maltese tax law?

Abstract

This work has the object of addressing the school of thought known as tax exceptionalism, which at its core suggests that tax law’s unique properties render it inherently different from the general body of law that constitutes the national juridical order. Fiscal legislation is a vast and dynamic area of the law; so much so that it could be said to be in a constant state of flux. Taxation is typically assessed from a regulatory or commercial perspective, with comparatively little attention being devoted to tax controversy. Nonetheless, tax controversy constitutes a core component of the overall fiscal system, and plays a vital role in guaranteeing the foreseeability and predictability of tax law. In particular, this thesis assesses the merits of advocating tax exceptionalism vis-à-vis tax controversy. Its purpose is to investigate the desirability or otherwise of tax exceptionalism as a response to the current configuration of the Maltese tax litigation structure. The approach taken adopts a blend of legal doctrine and empirical evidence in order to provide a balanced and reasoned conclusion. The theoretical foundations are found in Stephen Legomsky’s seminal work Specialized Justice, which proposes a cross-national theory of judicial specialisation. A comprehensive and critical evaluation of Malta’s tax litigation structure is undertaken; this is subsequently juxtaposed with comparative tax litigation systems that share a common administrative law heritage. A conclusion regarding the desirability of tax exceptionalism is reached following a careful consideration of the various factors at play. The ultimate findings in favour of increased judicial specialisation through judicial tax exceptionalism are based on the analysis of current data as well as an appreciation of ongoing shifts in global tax policy that could potentially affect the volume of tax litigation and quality of jurisprudence. This thesis reflects the state of the law as of 5 May 2016.