Enea communication on completion of works: the case submitted to the Court
The affair arises from a notice issued to a taxpayer who in 2008 had sent the APE to ENEA beyond the deadline of 90 days from the end of the works.
The act was challenged and the appellant won both at first and second instance, as the tax judges considered that “the burden of transmitting to ENEA, within 90 days of the conclusion of the works, the energy certification certificate, did not constitute a necessary requirement to be able to take advantage of the deduction linked to expenses incurred for the energy qualification of buildings.”
For the Agency, however, it would have been an omission that would have led to the forfeiture of the benefit, so the issue was brought before the Court of Cassation. And the Agency lost.
No sanctions, no obligations
In the text of the sentence, al point 2.1 in fact we read that in the matter in question the taxpayer he did not omit, but delayed the communication to ENEA, with respect to the expected deadline.
But from the text of the law, underlines the Court of Cassation, the forfeiture of the benefit cannot be inferred “for failure to comply with the deadline of ninety days from the end of the works required by law for forwarding the communication to ENEA”nor can it be deduced from other provisions, nor from the very wording of theart. 4 of the ministerial decree 19 February 2007 which introduced the obligation “due to the fact that in itself the expression used therein, according to which the subjects who intend to make use of the deduction relating to the expenses for the interventions referred to in the art. 1, paragraphs 1 and 2, of the same decree, i.e. on the energy requalification of buildings, are “required” to transmit to ENEA the data relating to the works carried out, without any express warning of forfeiture having been established by said regulation, it is not sufficient to determine a hypothesis of forfeiture, which must imperatively be deduced at least through a systematic interpretation of the primary and secondary legislation based on the purpose for which the fulfillment is prescribed”.
And furthermore, the Court of Cassation further underlines, it must be taken into account, with respect to the original legislation which dictated the rules for communication to ENEA, also of “subsequent art. 5, paragraph 4 – bis of the ministerial decree of 19 February 2007, as inserted by art. 5, paragraph 1, letter. c) of the Ministerial Decree of 7 April 2008, which allows, starting from the tax period in progress as of 31 December 2008, that which is the subject of this judgment, the person who incurs the expense the possibility of drawing up and sending the information sheet to ENEA some jobs, omitting the energy qualification certificate for certain types of work”.
So basically the Agency had no right to deny the deduction in question for failure to comply with a peremptory deadline, given the fact that nowhere is it written that failure to comply with the deadlines entails the loss of the benefit, and without taking into account the rules which have come into force precisely in 2008.
Only an obligation for statistical purposes
Without forgetting, the Court of Cassation adds, that it is now clear that the same obligation of communication fulfills mostly statistical purposes as expressly clarified “in primary legislation, from the following art. 16, paragraph 2-bis of Legislative Decree 4 June 2013, n. 63, regarding the extension of the deductions due in relation to the costs incurred for energy requalification interventions, with reference to which the Revenue Agency itself, with Resolution no. 46/E of 18 April 2019, ruled out that failure to communicate or late communication could result in the denial of recognition of the deduction”.
Then the Revenue they were definitely wrong with the tax return for 2008. Right now it is clear that the communication to ENEA is not necessary in the context of the deduction for renovation for energy saving interventions, and these indications are also reported in the instructions for the tax return.
For the Ecobonus, however, the same instructions confirm that sending the communication is necessary and that in case of failure to send you can use the remission to performing status which allows you to send the missing communication within the deadline for submitting the Income form.
