Tax News
Legislative Decree no. 87 of 2024 is part of the broader scope of the reform of the tax system carried out by the Tax Delegation Law, 9 August 2023, n.111, and implements a revision of the tax penalty system, both administrative and criminal.
Among the most important innovations that have occurred on the administrative side, the attribution of the offense to entities and partnerships, the tendency to reduce the amount of sanctions, the new system of determination based on a fixed amount and the definition of the cases of non-due credit stand out. and non-existent. Also on the criminal side there have been significant innovations, such as the review of the regulation of the crimes of non-payment, the implementation of the causes of non-punishment, the tempering of the accumulation of criminal and administrative sanctions and the introduction of a regulation expressed in terms of effectiveness of sentences in criminal and tax trials.
Finally, it should be noted that on 21 June 2024, the revision of the sanctioning system was addressed by academics from all over Italy as part of a conference (link) organized by Prof. Cordeiro Guerra.
As part of the reform of the tax system implemented by the Tax Delegation Law of 9 August 2023, n. 111, Legislative Decree no. 19 December 2023 was issued. 209, regarding international taxation.
The residence of natural persons was renewed, first of all, through the replacement of the civil criterion of "domicile" with a new criterion of a substantial nature, which has regard to the personal and family relationships of the taxpayer. Significance was also attributed to physical presence in the territory of the State while registration in the registry office took on the value of rebuttable presumption. As regards the residence of legal persons, however, the reference to the criterion of the "company object" has ceased to exist while that of the "registered office" has remained unchanged. The "headquarters of administration" was finally divided into two different criteria: that of the "headquarters of effective management" and that of "main ordinary management".
The case originates from the attribution of the qualification of "shell company" by the Revenue Agency to an Italian company, with consequent application of the art. 30 Law 724/1994. This rule, by excluding the possibility of reimbursement, compensation and transfer of the excess VAT credit for non-operating companies, effectively determines the loss of this credit and, therefore, the non-deductibility of the tax. The Court of Justice of the European Union, with sentence of 7 March 2024, case C-341/22, affirmed the conflict of this provision with the art. 9 of VAT Directive no. 112 of 2006, which, by identifying anyone who carries out an economic activity as a taxable person, regardless of its purpose and results, ignores the productive results of an activity. Hence the incompatibility with community law of a rule such as the Italian one, which deprives the taxable person of the right to deduct VAT due to the amount, considered insufficient, of active operations.