One of the topics that is taking center stage in this period is undoubtedly that relating to spontaneous spill procedure of the tax credits for research and development activities.
We remind you that the procedure spontaneous spillage, foreseen byarticle 5, paragraphs 7 to 12, DL 146/2021allows you to regularize, without application of penalties and interestThe undue uses in compensation of the tax credit per investments in research and development activities, referred to inarticle 3, DL 145/2013.
This procedure is reserved for individuals who intend repay the accrued credit starting from the tax period following the one in progress as of 31.12.2014 and up to the tax period in progress as of 31.12.2019 (therefore, in the financial years 2015-2019) e used unduly as compensation until the date of entry into force of the law which introduced the procedure itself, that is until 22.10.2021.
Alongside the transfer procedure, the legislator has provided for the right to request, pursuant to thearticle 23, DL 73/2022, a posthumous certification certifying the qualification of investments for the purposes of their classification within the scope of research and development activities.
This certification explains binding effects towards the Financial Administration, except in the case where, on the basis of an incorrect representation of the facts, the certification is issued for an activity other than the one actually carried out. Furthermore, it is issued by certain authorized subjects who comply, in the evaluation process, with the provisions of specific regulations guidelinesperiodically processed and updated.
In this context, the DL 39/2024 which has further the deadline was extended to take advantage of the transfer procedure in word, foreseeing that the new deadline is fixed for the submission of the application until next 31.10.2024.
The changes introduced by the amendments inevitably impact the matter D.Lgs. 87/2024who spoke on thearticle 1, Legislative Decree 74/2000 making a more precise distinction between credits not due and non-existent credits. To the letter g-quater) it is specified that for “non-existent credits” means:
- the credits for which the objective or subjective requirements are missing, in whole or in part specifically indicated in the relevant regulatory framework;
- the credits for which the above objective and subjective requirements are subject to fraudulent representationsimplemented with materially or ideologically false documents, simulations or artifices;
Instead, literally g-quinquies) is specified for “credits not due” means:
- the credits used in violation of the methods of use provided for by the laws in force or, for the relative excess, those enjoyed to a greater extentand to that established by the reference standards;
- the credits which, despite the presence of the subjective and objective requirements specifically indicated in the relevant regulatory framework, are based on facts not falling within the credit attribution discipline due to lack of further elements or particular qualities required for the purposes of credit recognition;
- the credits used in the absence of the required administrative requirements expressly provided under penalty of forfeiture.
It is clear that, by virtue of the above, only the tax credit for research and development activities falling within the latter definition, may be the subject of transfer procedure in word.
Furthermore, focusing for a moment on the concept of “innovation” which is often at the center of recovery activities of credits for research and development activities, it is worth highlighting that the Ministry of Business and Made in Italy, in data 5.7.2024ordered the publication of D.M. 4.7.2024containing the “Guidelines” for the correct application of tax credit for research and development activitiestechnological innovation, design and aesthetic conception.
With specific reference to the theme ofinnovationthe is called first regulatory framework referred to inaarticle 1, paragraph 201, L. 160/2019 e all’article 3, MISE Decree 26.5.2020.
Subsequently, the CD is cited. “OSLO Handbook”, standard of reference in terms of research, development and innovation. Specifically, it clarifies that to define themselves as such, the innovation activities must comply with the following four requirements: knowledge, novelty with respect to potential uses, implementation and value creation.
From the analysis of such requirements (or, in any case, of the aforementioned Guidelines generally) emerge interesting directions That, given the imminent deadline of 10.31.2024they can guide the choice of the taxpayer or, at least, be used defensivelyoffering very interesting ideas.
