Law no. 197/2022 (so called Budget Law 2023) has
introduced a new tax amnesty (pace fiscale), providing an
incentive to taxpayers intentioned to pay pending tax charges while
benefitting from a substantial reduction of the related fines and
sanctions.
The Italian Revenue Agency ("IRA") has release a new
Interpretation Paper, namely Note no. 2/E/2023, whichanalyses
inter alia a specific regime contemplated by the tax
amnesty named special voluntary correction of unpaid tax charge
(hereinafter the "Voluntary Correction"), as regulated in
Art. 1 § 174 to 178 of the Budget Law 2023.
The Voluntary Correction is applicable to violations
"concerning validly submitted tax returns relating to
fiscal years as of December 31, 2021 or precedent";
meaning that while violations relating to returns submitted no
later than 90 days after the deadline for submission (not
considered omitted under art. 2 co. 7 DPR 322/98) are still covered
by this measure, tax returns that have not been filed at all cannot
be amicably settled.
The Voluntary Correction allowstaxpayers to benefit from (i) a
reduction up to 1/18th of the of the minimum legal fines applicable
as well as (ii) the possibility to pay in installments, up to
maximum of eight quarterly installments, each having equal
amount.
In particular, it is noteworthy that according to the IRA:
"the Voluntary Correction allows the amicable settlement
of substantial tax returns' violations and substantial
violations preconditional to the submission of the tax returns,
which are not automatically amended by the regularization of the
tax return."
It is also worth pointing out that each single violation
must be amended and adjusted, together with the settlement of the
reduced fines, as neither the legal mechanisms of cumulative
sanctions and continuation apply.
Based on the above, the following violations can be settled by
means of Voluntary Correction:
- unfaithful tax returns punished with a penalty varying from 90% to 180% of the corporate/direct/indirect/VAT tax or withholdings, pursuant to art. 1, 2 and 5 of Legislative Decree No 471/97;
- violations preconditional to the tax return, e.g. omitted/unfaithful invoicing as set forth by art. 6 § 1 of Legislative Decree No. 471/97, punished with a penalty varying from 90% to 180% of the direct/indirect tax or for undue VAT deduction pursuant to art. 6 § 6 of Legislative Decree No 471/97 (90% of the tax);
- assessment deriving from a formal control of tax returns, subject to the penalty of 30% (undue tax deductions from other taxes or from taxable income).
In order to access to the Voluntary Correction, the applicant must (i) pay the whole amount of unpaid taxes, together with interests and reduced penalties 1/18, or at least the first installment, and (i) cease the violation within March the 31st , 2023.
Also, is should be noted that that, contrary to other similar mechanism regulated under the 2023 tax amnesty, the Voluntary Correction regulation does not expressly prevent the possibility of settling the due amounts through total or partial offset of other tax, VAT or WHT credit in the F24 form.
On this point, the IRA has released the following comment in Note no. 2/E/2023: "Considering that, according to the ordinary rules of the voluntary correction allows the taxpayer to settle wholly or partially the due amounts via offsetting tax assets in compliance with Article 17 of Legislative Decree No. 241/1997 and that the regulation of the "Special" Voluntary Correction of unpaid tax charges does not expressly exclude the possibility under scope, it can be considered that the offset procedure can be used for the related payments."
Further:
- lacking any reference in the Budget Law 2023 to the regime of the s.c. unmaterial violations set forth by Article 15-ter of Presidential Decree 602/73, it shoud be concluded that the Special Voluntary Correction does not apply to this type of violations;
- the taxpayer shall file a supplementary tax return to remove the violation, the assessment prescription terms would start running limited to the regenerated items of the return itself (Art. 1 § 640 of L. 190/2014).
In conclusion, the IRA has stated that, being the l Voluntary
Correction as regulated in the Budget Law 2023 already clear
enough, no implementing decree will be issued, apart from an
additional dedicated IRA Note providing the reference codes to be
indicated into the F24 Forms.
For all the circumstance not expressively set forth by the Budget
Law 2023 or the Interpretation Paper, the clarifications provided
by the IRA over the years regarding the "ordinary"
voluntary corrections shall apply.
Originally published 14 February 2023.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.