ARTICLE
23 August 2023

The "Special" Voluntary Correction Of Unpaid Tax Charges – Clarifications

IL
IPG Lex&Tax
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IPG Lex&Tax
Offices based in: Turin, Milan, Rome, Verona and Naples.
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...
Italy Tax
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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).
Instead, the Voluntary Correction cannot apply to the following violations: (i) violations assessed through automatic clearance of the tax return and formal violations, which can benefit from a different dedicated regime provided by the tax amnesty as per the Budget Law 2023 (respectively the definition of remittance notices and the definition of formal violations); (ii) violations concerning the omission/unfaithful filing of the RW Form (related to the disclosure of assets held abroad), which can be subject to ordinary voluntary correction of tax return (and not the Special procedure as per the Budget Law 2023).

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.

ARTICLE
23 August 2023

The "Special" Voluntary Correction Of Unpaid Tax Charges – Clarifications

Italy Tax
Contributor
IPG Lex&Tax
Offices based in: Turin, Milan, Rome, Verona and Naples.
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