Il decreto legge 23 ottobre 2018, n. 119, citato, introduce la possibilità di aderire alla definizione agevolata dei processi verbali di constatazione, degli atti del procedimento di accertamento, dei carichi affidati all’agente della riscossione (c.d. “rottamazione ter”) e delle controversie tributarie.

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Law-Decree 23rd October 2018, no. 119 (converted into law, with amendments, through Law 17th December 2018, no. 136, published in the Official Gazette no. 293 of the 18th December 2018) “Urgent tax and financial provisions”

Summary

1. Settlement of tax audit reports (article 1)
2. Settlement of deeds of assessment (article 2)
3. Settlement of tax collection notices assigned to the Italian Tax Collectors (article 3)
4. Settlement of tax collection notices assigned to the Italian Tax Collectors for European Union traditional own resources and import VAT (article 5)
5. Settlement of pending Tax Court proceedings (article 6)
6. Settlement of formal irregularities (article 9)

1. Settlement of tax audit reports (article 1).

The law-decree 23rd October 2018, no. 119, converted into law, with amendments, through Law 17th December 2018, no. 136 (hereinafter, “the Decree”), which entered into force on 24th October 2018, introduces the possibility for the taxpayer to settle, under certain circumstances, the tax audit reports that have been served before the entry into force of the Decree.

The settlement takes place with the payment of the taxes due[1], without any penalties and interests (except for tax debts that concern European Union own resources, for which the payment of interest is expressly provided).

The procedure has to be finalized (i) with the filing of a new (if omitted) or supplementary tax return (ii) together with the payment of the amount due by 31st May 2019. The payment can alternatively be made in twenty quarterly instalments.

2. Settlement of deeds of assessment (article 2).

The Decree regulates the settlement of some deeds of assessment; in particular, the taxpayer can settle:

1. tax assessment notices, adjustment and liquidation notices and credit recovery notices, served before the entry into force of the Decree and for which the term for appeal has not expired;

2. invitation notices to appear in which the higher tax due is quantified.

These proceedings can be settled by paying the amount of the taxes due (also in instalments up to a maximum of twenty), without any penalties, interest and ancillary costs within the deadline for the appeal (if it has not yet expired). At the date of the conversion, most of the deadlines settled by the Decree had already expired.

3. Settlement of tax collection notices assigned to the Italian Tax Collector (article 3).

The Decree introduces a new settlement of the debts assigned to the Tax Collector from 1st January 2000 to 31st December 2017 (so-called “rottamazione-ter”)[2].

The taxpayer can settle these debts by (i) filling a specific settlement request by 30th April 2019 and (ii) paying the amount of taxes due (also in up to a maximum of eighteen instalments), and costs related to the enforcement procedures by the 31st July 2019, without penalty and interest.

The filing of the settlement request determines:

1. the suspension of the terms of lapse and forfeiture;
2. the suspension of payment obligations deriving from previous settlements existing at the settlement request filing date;
3. the prohibition to register new mortgages and other precautionary administrative measures;
4. the prohibition to start new enforcement procedures or to continue those previously started;
5. the condition of “non-compliance” of the debtor.

Moreover, in case of proceedings concerning a tax collection bill pending before the Tax Court, the filing of the settlement request entails the waiver by the taxpayer of the pending litigation.

By 30th June 2019, the Tax Collector shall inform the taxpayer of the amount due for the purposes of the settlement.

In case of omission, insufficient or late payment, the settlement does not produce effects and the debt recovery terms of lapse and forfeiture start again.

This last provision is not applicable if the delay in payment of the instalments is less than five days.

4. Settlement of tax collection notices assigned to the Italian Tax Collectors for European Union traditional own resources and import VAT (article 5).

The Decree introduces the settlement of tax collection notices assigned to the Italian Tax Collectors from 1st January 2000 to 31st December 2017 concerning European Union own resources and import VAT.

Debts may be settled by using the same procedure provided under article 4 for the so-called “rottamazione-ter” with some specific derogations.

5. Settlement of pending Tax Court proceedings (article 6).

The Decree introduces the possibility to settle certain tax proceedings pending before Tax Courts, including those pending before the Supreme Court and those pending after the Supreme Court has issued a decision that refers the case back to the Tax Court.

In particular, the settlement concerns proceedings in relation to which (i) the taxpayer has served the counterparty with the initial appeal by the date of the entry into force of the Decree and (ii), at the date of the application, the proceeding has not yet concluded with a judgment issued by a Court not liable to be appealed.

In order to settle tax proceedings, the taxpayer has to file an application by 31st May 2019 and pay[3], within the same period, (a) an amount equal to 90 per cent of the claimed tax, net of interest and penalties imposed, in case the first instance decision has not already been issued; or, taking into consideration the last or sole judgement (not with precautionary nature), issued by the date of entry into force of the Decree: (b) an amount equal to 40 per cent of the same tax claimed, in case the first instance judgement (not with precautionary nature) has been favourable; (c) an amount equal to 15 per cent of the same tax claimed, in case the second instance decision has been favourable; (d) an amount equal to 100 per cent of the same tax claimed in case of an unfavourable decision.

Furthermore, the Decree provides that in order to settle tax proceedings that are partially favourable for the taxpayer, it is necessary to pay an amount equal to (i) the tax due, net of interest and penalties imposed, taking into consideration the part of the deed confirmed by the judgement or (ii) the minor part due taking into consideration the part of the deed cancelled by the judgment, following the rules (b) and (c) mentioned in the paragraph above.

Moreover, tax proceedings pending before the Supreme Court, where all previous instances have been unfavourable to ITA, can be settled by paying an amount equal to 5 per cent of the claimed tax.

With reference to proceedings concerning penalties not linked to taxes[4], the settlement requires the payment of:

1. fifteen per cent of the penalties imposed, in case the last or sole judgement (not with precautionary nature), issued by the date of entry into force of the Decree, has been unfavourable to ITA;
2. forty per cent in other cases.

European Union own resources, import VAT and recovery of State Aid are excluded from this settlement possibility.

Pending proceedings are suspended only upon request of the taxpayer. The request produces the suspension up to 10th June 2019; moreover, if by this date the taxpayer provides a copy of the settlement request to the Court and a copy of the payment (of the entire amount or the first instalment), the proceeding will remain suspended up to 31st December 2020.

Furthermore, for proceedings which may be settled, appeal terms, which expire between the date of entry into force of the Decree and 31st July 2019, are suspended for nine months.

6. Settlement of formal irregularities (article 9)

The Decree provides the possibility to  amend the irregularities, infringements and non-compliance of formal tax obligations, not affecting the amounts of income tax, VAT and IRAP due, if committed up to 24th October 2018.

In particular, these formal irregularities can be settled by the payment of a lump sum of 200 euros for each tax period affected by such violations.

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[1] Taxes that may be settled by using this special procedure are: (i) income taxes and relevant surcharges, (ii) substitute taxes (of income tax), (iii) withholding taxes and social contributions, (iv) regional income tax, (v) value added tax (hereinafter “VAT”), (vi) tax on the value of buildings held abroad and (vii) tax on foreign financial activities.

[2] Among other “tax amnesties” introduced by the Decree, it provides for an automatic write-off at the date of 31st December 2018 (without filing any specific application) of debts up to 1,000 Euros, including principal amounts, interests and penalties, whose collection has been assigned to the Tax Collector in FYs from 2000 to 2010. In this respect, it is clarified that all amounts paid before 24th October 2018 are deemed as definitely paid. Instead, the amounts paid after that date will be (i) computed together with other amounts due for payment in relation to the different settlement procedures set forth by the Decree (if any); or (ii) in the absence of any such debts, computed in relation to other overdue (or falling due) debts; and (iii) or refunded to the taxpayer.

[3] In case no amount is due, the settlement is effective by means of the mere filing of the application.

[4] For proceedings concerning penalties linked to taxes, no amount is due if the underlying tax issue has been previously resolved.