The DLgs. 87/2024 has reformed the sanctioning system of undue compensation in various aspects.
First of all, the legislator has tried to define more precisely the distinction between non-existent credits and credits that are not due: it is known that procedural, sanctioning and criminal effects arise from the legal nature of undue compensation.
Innovating compared to the previous system, the definitions are now contained in theart. 1 of the Legislative Decree. 74/2000 (on the subject of tax crimes) and are also valid for administrative purposes, being referred to byart. 13 del DLgs. 471/97.
If the combined regulatory provision is analyzed in depth, critical interpretative issues emerge regarding the compensation carried out in the absence of administrative obligations under penalty of forfeiture:
– for criminal purposes, the credit is considered not due (art. 1 paragraph 1 letter g-quinquies) of the Legislative Decree. 74/2000);
– for tax purposes, the credit is considered non-existent (this can be deduced a posteriori from art. 13 paragraph 4 and paragraph 4-bis, where the credit offset is sanctioned at 25% in the absence of administrative obligations not foreseen under penalty of decadence).
For tax purposes, compensation in the absence of administrative obligations therefore has a threefold aspect, as it can be sanctioned:
– to the extent of 70% if compliance is required under penalty of forfeiture;
– to the extent of 25% if compliance is not required under penalty of forfeiture;
– in the fixed amount of 250 euros if compliance is not foreseen under penalty of forfeiture and the violation is removed within the deadline for submitting the declaration relating to the year in which the violation was committed.
This can be an indefinite series of cases, likely to occur where the credit regulation in question subordinates the compensation to a formal fulfillment, which can be a prior communication, an application or the obtaining of a clearance.
It is difficult to identify the boundary between what has been stated and remission in bonis ex art. 2 paragraph 1 of Legislative Decree 16/2012.
The remission to performing status was deemed possible by practice due to the failure to send the communication of the energy and gas tax credits ex art. 1 paragraph 6 of Legislative Decree 176/2022, obviously in compliance with the legal requirements and if it occurred before the compensation (Revenue Agency resolution 19 June 2023 n. 27).
Often, if fulfillment or communication are conditions for the legitimacy of the set-off, in the event of omission, it would fall within the set-off of a non-existent credit (as seen before, set-off in the absence of expected fulfillment under penalty of forfeiture is non-existent).
Therefore, either the remission to performing status is carried out or the undue compensation is amended at 70%.
However, the law is often unclear as to what the effects of preventive compliance are.
However, one could also believe that the compensation is not a preferential tax regime, then we would be fundamentally outside the concept of remission in bonis.
The omitted HR framework should also be evaluated
Even more particular is the compensation carried out without completing the HR part of the INCOME form, considering that theart. 1 of the Legislative Decree. 1/2024, according to which “The failure to indicate tax credits deriving from benefits granted to economic operators in the annual declarations referred to in the articles 1, 4 e 8 of the decree of the President of the Republic 22 July 1998, n. 322, if due, does not lead to the forfeiture of the benefit”.
In light of the above, it should follow that the credit offset in the absence of indication in the RU table:
– cannot give rise to any type of recovery and any sanction of undue compensation if the indication is not foreseen under penalty of forfeiture, being able at most to legitimize the fixed sanction of theart. 8 of the Legislative Decree. 471/97 (Revenue Agency circular 24 April 2017 n. 13§ 4.9);
– it could be considered a non-existent credit if the indication is required under penalty of forfeiture, this being required for failure to formally comply with the described paragraphs 4-bis and 4-ter.
