On November 28, 2014, the Legislative Decree laying down provisions related to tax simplification so called “Decreto semplificazioni fiscali” (Legislative Decree no. 175 dated November 21, 2014) has been published in the Official Italian Gazette.
The “simplifications” relate to the following matters.
1. Simplified procedures for the VAT refund claims
Article 13 of the Legislative Decree amends the procedure related to the refund of the i) annual VAT credit as reported in the annual VAT return and ii) the quarterly VAT credit (related to specific cases currently provided for by the Italian VAT Law), as provided for by the article 38 bis, Presidential Decree no. 633/1972 (the Italian VAT Code).
In particular, it is provided:
The increase of the threshold from 5,164.57 euro up to 15,000.00 euro, under which the guarantee is not required;
The taxpayers can ask for refund VAT amounts higher than 15,000.00 euro, alternatively, by:
Submitting the VAT return or quarterly refund claim (the latter if the terms currently provided by the Italian VAT Law are in force) together with the compliance check (so-called “visto di conformità”) or an alternative subscription (performed by those subjects responsible for the accounting audit, if applicable, as per the article 2409-bis of the Italian Civil Code) attaching the declaration, in lieu of the notary deed, stating that specific conditions are jointly met;
Submitting the guarantee, as required by the legislative provision currently in force, that has to cover three years from the execution of the refund or the period provided for in the statute of limitation.
VAT refunds through the submission of the guarantee
According to the amendments provided for by the decree, VAT refunds, whose amount is higher than 15,000.00 euro, are performed only after the mandatory submission of the guarantee, whether one of the following conditions occur:
The claimants carry out the business for a period lower than two years (except for innovative start-up companies as per article 25 of Law Decree no. 179/2012);
The claimants received, during the two years prior to the VAT refund claim, a tax assessment or adjustment according to which, for each year, there is a difference between the amounts assessed and the credits declared meeting certain percentages;
The claimants submitted the annual VAT return or the quarterly claim showing the VAT credit asked for refund, without attesting the compliance check (so called “visto di conformità”) or the alternative subscription, or without submitting the declaration replacing the notary deed;
The claimants ask for refund the VAT resulting from the termination of the activity.
The above provision will enter into force starting from December 13, 2014.
2. Communication to the Italian tax authorities of the data included in the so called “dichiarazione di intento”
Article 20 of the Legislative Decree under exam amends the procedures related to the communication to the Italian tax authorities of the data included in the so called “dichiarazione di intento” issued by the so-called “usual exporters” in order to ask the suppliers not to apply VAT on the supplies rendered to them (as per the article 8, paragraph 1, letter c), Presidential Decree no. 633/1972).
As from January 1, 2015 following changes applying
The obligation to communicate the so called “dichiarazione di intento” to the Italian tax authorities is shifted from the supplier – who receives the above mentioned document – to the “usual exporter”- who released it. The above-mentioned declarations have to be submitted via electronic means to the Italian tax authorities that will issue the related return receipt;
The “usual exporter” delivers to his supplier, or to the Customs authorities, the so-called “dichiarazione di intento” already submitted, via electronic means, to the Italian tax authorities together with a copy of the return receipt;
The supplier continues to be required to summarize the data of the transactions exempt from VAT with right to deduct carried out towards “usual exporters” in the annual VAT return;
Within 120 days after the date in which the provision at hands will enter into force (i.e. December 13, 2014), the Italian tax authorities will provide the Customs authorities with a database related to the so-called “dichiarazione di intento” in order to release the “usual exporters” from the delivery of the above-mentioned paper documents to the Customs authorities.
The supplier is entitled to carry out the transaction as exempt form VAT with right to deduction only after having received the so-called “dichiarazione di intento” and the related return receipt.
The decree introduced amendments also to the penalties. In particular, by replacing the existing paragraph 4-bis of article 7, Legislative Decree dated 18 December 1997 no. 471, it is provided that a penalty from 100% to 200% of the VAT due could be challenged to supplier that renders supplies of goods or provision of services exempt from VAT with no right to deduction according to the above-mentioned article 8, paragraph 1, letter c), of the Italian VAT Code without having, in advance:
Received the so-called “dichiarazione di intento” and
Checked, via electronic means, the return receipt issued by the Italian tax authorities.
The above provisions will enter into force with regard to the “dichiarazioni di intento” related to exempt operations (with right of deduction) carried out starting from January 1, 2015. However, in order to define the way of implementing the above mentioned provision, the decree refers to an Act of the Italian tax authorities’ Director, to be issued within 90 days starting from the date of entry into force of the Legislative Decree (i.e. December 13, 2014).
3. Communications related to transactions carried out with operators established in black-list countries
Article 21 of the decree (without changing the subjects required to file the Communication related to transactions carried out with operators established in black-list countries, the conditions for the communication and the forms to be used), has provided as follows:
The increase of the threshold from 500,00 euro to 10,000.00, euro on annual basis under which there is no obligation to communicate to the Italian tax authorities the transactions carried out with taxable persons resident or domiciled in “Black list” countries;
The annual basis (and no longer the monthly or quarterly one, depending on the amount of transactions carried out in the previous four quarters) for the electronic filing to the Italian tax authorities of the above mentioned communication.
It is not clear whether the threshold is based on the total operations (input and output operations) carried out with operators located in a black list countries and with regard to each operator. The above provision applies to transactions carried out with operators established in black list countries during the current calendar year (i.e. 2014). Guidance from the Italian tax authorities on the deadline for the submission would be welcome but is at the moment missing.
4. Request for authorization to perform intra-EU transactions
Article 22 of the decree at issue introduces:
The inclusion in the database (i.e. VIES system) immediately upon the communication of the intention to carry out intra-EU transactions;
The exclusion from the VIES system, previously issuing a proper notification to the taxpayer by the Italian tax authorities, whether the latter has not submitted any Intrastat form for at least the four consecutive quarters following the date of inclusion in the VIES system because it is presumed that the operator does not intend to carry out such operations;
The Italian tax authorities’ offices, according to the Presidential Decree n. 633/1972, have to check the completeness and accuracy of the data provided for their identification for VAT purposes. In case of a negative result, the Italian tax authorities issue an act for the cancellation of the VAT identification number and the exclusion of the latter from the database related to taxable persons carrying out intra-EU transactions. In this respect, the decree refers to an act of the Italian tax authorities’ Director where it will be established the way for the inclusion of the VAT identification numbers in the VIES system and the criteria and procedures for the cancellation of the Italian VAT number and the exclusion of the latter from the database.
The above provision will enter into force starting from December 13, 2014.
5. Simplification of the Intrastat declaration regarding the provision of “generic” services
Article 23 of the decree refers to the issuance (within 90 days starting from the date in which the above mentioned decree will enter into force) of an Act of the Italian Customs authorities’ Director, in agreement with the Italian tax authorities and the National statistical authorities, aimed to reduce the content of the Intrastat form regarding the provisions of “generic” services (i.e. services other than those provided by the articles 7quater and 7quinquies, Presidential Decree no. 633/1972) rendered by and received from VAT taxable persons established in another member State.
In particular, the Intrastat declaration regarding intra-EU provisions of services only quotes:
The VAT identification number of the counterparties;
The value of the above mentioned transactions;
The identification code of the type of services rendered or received;
The country of payment.
Article 23 will enter into force starting from December 13, 2014. However, in order to define the way of the implementation of the above mentioned article, the decree refers to an Italian tax authorities’ act that has to be issued within 90 starting from the above mentioned date.
In addition, article 25 of the above mentioned decree is aimed at simplifying:
The burden of the communication of the data, related to intra-EU transactions, for statistical purposes, by limiting the application of the penalties in case of omission or inaccuracy of said data, only for companies that meet specific requirements as per the Presidential decrees annually issued according to the article 7, paragraph 1, Legislative Decree no. 322 dated September 6, 1989, related to the list of investigations according to which an infringements for the obligation to reply applies;
The amount of the penalties due, by providing that the penalty is applied only once and for each monthly Intrastat declaration incorrect or inaccurate regardless the numbers of missing transactions or the ones incorrectly reported on the above mentioned declaration.
Article 25 will enter into force starting from December 13, 2014.