New obligations for fiscal representatives and non-resident entities in the European Union intending to carry out intra-EU transactions
With two new ministerial decrees dated 4th[1] and 9th[2] December 2024, the Ministry of Finance has implemented the new obligations introduced by legislative decree No. 13 of February 12th, 2024.
In implementation of the new paragraph 7 quater of Art. 35 of d.P.R. 633/72[4] (“VAT Decree”) and the new phrase of paragraph 3 of Art. 17 of the VAT Decree[5], those intending to assume the role of fiscal representative of foreign entities not established for VAT purposes in Italy must jointly:
- possess the personal integrity requirements indicated by Art. 8, para. 1, lett. a), b), c) and d) of Ministerial Decree no. 164 of May 31th, 1999[6];
- submit to the competent Provincial Directorate of the Italian tax authorities on the basis of the fiscal domicile of the fiscal representative (hereinafter referred to as “competent PD”) a notarial deed pursuant to Arts. 46 and 47 of Presidential Decree 445/2000, aimed at attesting the existence of the aforementioned personal integrity requirements;
- personally provide an appropriate guarantee to the competent PD if they intend to represent multiple entities[7];
- verify the completeness of the documentation and information set produced by the represented entity established outside the EU, in order to include their VAT number in the VIES database, and its corresponding accuracy to the information in their possession.
Fiscal representatives who meet the requirements of integrity and have provided adequate guarantee will be available for consultation on the Italian tax authorities’ website.
Fiscal representatives who, on the contrary, do not fulfill the new guarantee obligations are subject to an administrative penalty ranging from 3,000 euros to 50,000 euros, without the possibility of applying the legal cumulation[8].
The guarantee referred to in point sub. 3 must be personally submitted by the fiscal representative and must meet the following requirements:
- Form: (i) collateral in goverent bonds or bonds guaranteed by the government; or (ii) bank guarantee; or (iii) guarantee insurance policy;
- Beneficiary: acting director pro tempore of the competent Provincial Directorate of the Italian tax authorities on the basis on the fiscal domicile of the fiscal representative (hereinafter “competent DP”);
- Minimum amount[9]:
- €30,000.00, if the representatives are min. 2 max 9;
- €100,000.00, if the representatives are min. 10 max 50;
- €300,000.00, if the representatives are min. 51 max 100;
- €1,000,000.00, if the representatives are min. 101 max 1,000;
- €2,000,000.00, if the representatives are more than 1,000.00.
- Submission method: personally by the fiscal representative to the competent DP;
- Duration: for a minimum period of 48 months from the date of assuming the role of fiscal representative, i.e. from the date of submission of the guarantee to the competent DP (after which it does not need to be resubmitted).
Furthermore, with the ministerial decree of December 4, 2024, the Ministry of Finance has outlined the criteria and methods for issuing the guarantee that non-EU taxable persons – identified in Italy through a fiscal representative as per Art. 17, paragraph 3, of the VAT Decree – must present in order to include their VAT number in the VIES database to carry out intra-EU transactions in Italy.
This guarantee must be presented directly by the non-EU entity or through their fiscal representative to the competent DP and must meet the same formal requirements mentioned above for the fiscal representative’s guarantee. In this case, the minimum amount to be guaranteed must be equal to 50,000.00 euros for a minimum duration of 36 months from the date the guarantee is submitted (after which – even in this case – it does not need to be resubmitted).
On this matter, both the Italian tax authorities and the Italian financial police will jointly conduct specific risk analyses aimed at identifying the fiscal representatives of non-EU entities that present indicators of risk regarding the proper fulfillment of obligations to verify the completeness and accuracy of documents produced by the foreign entity.
For both changes to become operational, it is still necessary to wait for the issuance of two provisions by the Director of the Italian tax authorities, who has been entrusted with the operational aspects.
Finally, it is worth noting that the changes will also apply to fiscal representatives and non-EU entities (which carry out intra-EU transactions) even before the entry into force of the regulation and that they will continue to operate in the same manner. Indeed, the fiscal representatives, who will act as such on the date of publication of the relevant operational measure, will be required to submit the declaration of notarial deed and the guarantee within 60 days from that date, under penalty of termination of the VAT number of the foreign subject[10]. Similarly, non-EU subjects who, on the date of publication of the relevant operational measure, are already included in the VIES, will be required to present the guarantee within 60 days from that date, under penalty of exclusion from the aforementioned database[11].
For further information please contact Davide Accorsi at davide.accorsi@pwc.com.
[1] Published in Official Journal No. 292 of December 13th, 2024.
[2] Published in Official Journal No. 297 of December 19th, 2024.
[4] Pursuant to the new paragraph 7-quater of Art. 35 “By way of derogation from the first sentence of paragraph 7-bis, for taxable persons not residing in a member state of the European Union or in one of the states that are part of the European Economic Area who fulfill the obligations arising from the application of the rules on Value-added tax through a fiscal representative, appointed pursuant to Article 17, third paragraph, of the decree of the President of the Republic of October 26th, 1972, no. 633, the inclusion in the database of taxable persons carrying out intra-community operations occurs upon the provision of an appropriate guarantee. By decree (11) of the Minister of Economy and Finance, the criteria and methods for issuing the guarantee referred to in the first sentence are identified. The fiscal representative who submits to the Italian tax authorities the declaration of commencement or change of activity, which includes the exercise of the option for inclusion of the VAT number in the database of taxable persons carrying out intra-EU transactions as provided by Article 17 of Council Regulation (EU) No. 904/2010, of 7 October 2010, referred to in paragraph 2, letter e-bis) of this article, is obliged to verify the completeness of the documentary and informational set produced by the taxpayer and its correspondence to the information in their possession. By decree of the Minister of Economy and Finance, the terms and methods of intervention for verifying the obligations provided for in this paragraph are identified, to be implemented also based on specific operational agreements concluded between the Italian tax authorities and the Italian financial police”.
[5] Pursuant to the last period of paragraph 3 of Art. 17 “The fiscal representative must meet the subjective requirements outlined in Article 8, paragraph 1, letters a), b), c), and d) of the decree by the Minister of Finance dated May 31, 1999, No. 164. (4) In the event of appointing a legal entity, the above requirements must be met by the legal representative of the designated entity appointed pursuant to this paragraph. (4) A decree by the Minister of Economy and Finance identifies the criteria under which the fiscal representative can assume this role only after providing an appropriate guarantee, also adjusted in relation to the number of represented subjects.”
[6] The fiscal representative must not (i) have been convicted, even if not definitive, for financial crimes, nor have entered into a plea bargain related to the same; (ii) have ongoing criminal proceedings at the trial stage for financial crimes; (iii) have committed serious and repeated violations, by their nature and extent, of tax and contribution regulations; (iv) be in any of the conditions that lead to ineligibility and the inability to maintain certain positions, as per Art. 15, co. 1, of Law no. 55 of 1990.
[7] Those who intend to represent only one entity are exempt from providing the guarantee and are required to submit only the affidavit as per sub-point 2.
[8] See paragraph 7-quinquies added to Art. 11 of Legislative Decree No. 471/1997.
[9] If the increase in the number of represented entities results in a shift from one bracket to another, the tax representative must present the guarantee again for the new maximum limit.
[10] In cases where the failure to submit the declaration of affidavit or guarantee by the fiscal representative is contested, the Italian tax authorities notify the same fiscal representative, via certified email (PEC) or registered mail, of the initiation of the procedure for the automatic termination of VAT numbers for the represented entities. Sixty days after the fiscal representative receives the notification, the Italian tax authorities proceed with the automatic termination of the VAT number of the represented entities.
[11] In cases where the aforementioned guarantee is not provided, the Italian tax authorities communicate to the fiscal representative of the non-resident subject, via certified email (PEC) or registered mail, the initiation of the procedure for excluding the represented subject from the VIES database. Sixty days after the date of receipt of the communication by the fiscal representative, the Italian tax authorities proceed with the automatic exclusion of the VAT number from the cited database.