What are the checks documentary and the sanctions relating to the non-existent or undue tax credits to the taxpayer? Let’s analyze the following current legislationincluding the terms of forfeiture for the notification of documents and the recovery mode of the deductions not due by the Revenue Agency.
Furthermore, we see the difference between sanctions applicable to non-existent credits and those for undue credits, also examining in depth the joint liability and the penalties for irregular certifications.
Document verification and recovery of undue deductions
AND task of the Agency proceed with the documentary verification within the terms set out in dln 185 of 1998, art. 27, paragraph 16which provides that “the document referred to in Law No. 311 of 30 December 2004, art. 1, paragraph 421, issued following the control of the credit amounts indicated in the unified payment models for the collection of non-existent credits used in compensation pursuant to Legislative Decree No. 241 of 9 July 1997, art. 17, must be notified, under penalty of forfeiture, by 31 December of the eighth year following that of the relative use”.
L’art. 121 of the dm 34/2020, co. 5provides that “If the non-existence, even partial, of the requirements that give the right to the tax deduction is ascertained, the Revenue Agency will proceed with the recovery of the amount corresponding to the undue deduction”.
Non-existent tax credits and penalties
It is necessary to distinguish two different cases: on the one hand the challenge of non-existent tax credits, on the other relating to tax credits not due to the taxpayer.
The first case, relating to the non-existent tax creditsrepresents the objectively most serious case and can be identified whenever two essential elements occur. The first is the lack of the conditions constituting the tax credit obtained, the second concerns the fact that the violation must not be detectable during the automated checks of the Agency, pursuant to art. 36-bis And 36-ter of the Presidential Decree 600/1973 and from theart. 54-bis of the Presidential Decree 633/1972.
If a lack, even partial, of the requirements which give the right to a tax deduction, the Revenue Agency may take action to recover the amount corresponding to the tax deduction not due. Furthermore, this sum will be increased by the interest referred to inart. 20 of the Presidential Decree 602/1973 as amended by dl 28 October 2020, n. 137 converted with modification with the l. 18 December 2020, n. 176.
The Revenue Agency will be able to apply sanctions of which in theart. 13 of the Legislative Decree no. 471/1997 as amended by l. 28 December 2015, n. 208. This rule provides for a penalty equal to 30% of the amount of credit not due and illegitimately used.
If the case can be classified as the use of compensation for non-existent credits, the penalty is further applicable in an amount ranging from 100 to 200% of the credit illegally claimed plus, obviously, capital and interest.
The Legislative Decree 18 December 1997, n. 471 to theart. 13 co. 5 expressly states that “In the case of the use of non-existent credits as compensation for the payment of the sums due, a penalty of one hundred to two hundred percent of the amount of the credits themselves shall be applied. For the penalties provided for in this paragraph, in no case does the simplified definition apply provided for by Articles 16, paragraph 3, and 17, paragraph 2, of Legislative Decree 18 December 1997, n. 472”.
Solidal responsibility
In the event that the violation is committed with the competition of multiple subjectswill apply theart. 9, paragraph 1, of Legislative Decree no. 472/1997 which provides that every subject who participated in the violation is jointly liable to the sanction established for the same. In this situation, any payment of the fine by an active party of the violation will release the other co-obligors, without prejudice to the right of recourse actions.
Irregular attestations
In the case in which the undue obtaining of the benefit was facilitated through an irregular attestation, certification or sworn statement issued by the professionals and technicians involved in the procedure, theart. 119, paragraph 14 expressly provides that a s applies to the latteradministrative fine from 2,000 to 15,000 euros for each untrue attestation or declaration made, “without prejudice to the application of criminal sanctions where the act constitutes a crime”.
There l. 25/2022inserting a new paragraph 13-bis.1 in the art. 119 Legislative Decree 34/2020introduced the new category of crime of false declaration. The latter is applicable to the qualified technician who, in the certifications referred to in paragraph 13 and to theArticle 121, paragraph 1-ter, letter b)provides false information or fails to report relevant information on the technical requirements of the intervention project or on its actual implementation.
Undue tax credits and penalties
The situation is different when the tax credit is not due to the taxpayer, following the automatic and formal checks referred to in Articles 36-bis and 36-ter of the Presidential Decree 600/1973. Given that this violation it is less seriousmay occur when the system has detected, during formal automated checks, the inconsistency of the data entered by the taxpayer in relation to those present in the Revenue Agency databases.
There sanction directly applicable is provided for by theart. 13 co. 4 of the Legislative Decree 471/1997 which provides as follows: “In the event of the use of an existing surplus or tax credit in a greater amount than that due or in violation of the methods of use provided for by the laws in force, a penalty equal to thirty percent of the credit used shall apply, except for the application of special provisions”.
In this case, the provision of the Presidential Decree 600 of 1973, art. 43, paragraph 1, which establishes that the notice of assessment must be notified, under penalty of forfeiture, by 31 December of the fourth year following the year in which the declaration was submitted.
