Collective Commentary about the New Package Travel Directive

632 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE When we talk about the level of “ taxes or duties on tourist services included in the contract imposed by third parties not directly involved in the execution of the package ”, therefore, we refer to those taxes that affect the services included in the package. These are taxes that borned directly by the traveller and, therefore, generally, we must refer to the tourist tax or those taxes that weigh on the tourist company providing the service but with provision of the law of the right of legal recourse on the traveller, as is the case for VAT. In the event of the direct applicability of the tax on the traveller or of the legal recourse of the tax by the tourism company against the traveller, it will fall within the scope of Article 10 of the Directive. On the other hand, where the tax is levied on the tourist enterprise (for example, it may refer to income tax) and therefore the law does not provide for legal recourse, the possible economic transfer of these taxes, made by the tourist enterprise so as to configure a mere element of the price of the package, is not relevant for the purposes of the provision of Article 10, letter. b). This is because of the well-known distinction between legal recourse and economic translation. At this point, we cannot fail to provide a definition, albeit synthetic, of these two concepts. The right of legal recourse in tax law is the right (recognized by the law) of the person liable for the tax to demand from another person a sum of money equal to the tax for which he is liable. Recourse is a phenomenon traditionally framed among the instruments through which the person who has paid a tax, or is required to pay a tax, transfers the related economic burden to another person. The transfer is, therefore, the phenomenon that occurs when the taxpayer pays part or all of the tax due on another taxpayer, usually the purchaser of a good or a service, through the formation of the price, in the absence of ad hoc legal rules. This is, therefore, the process whereby the person liable to pay the tax to the tax authorities manages to transfer the burden in whole or in part to others. The transfer, as a transfer of a tax burden from a taxpayer in law to a taxpayer in fact, can occur through one or more chain transfers, before the tax reaches a person who has no way of relying on others 18 . 18 On the concepts of legal recourse and translation see for all M. Allena, Gli effetti giuridici della traslazione delle imposte delle imposte , Milano, 2005.