As part of the delegated decree on sanctions (Legislative Decree 87/2024), the legislator has inserted, in the art. 1 Legislative Decree 74/2000, the definitions of non-existent and non-due credits, also valid for tax purposes by virtue of the reference to the art. 13, c. 4 Legislative Decree 471/1997. In particular, the art. 1, letter. g-quater) Legislative Decree 74/2000 defines i non-existent credits come:
– credits for which the objective or subjective requirements specifically indicated in the relevant regulatory framework are missing, in whole or in part;
– credits for which the objective and subjective requirements referred to in the previous point are the subject of fraudulent representations, implemented with materially or ideologically false documents, simulations or artifices.
Conversely, the next letter. g-quinquies) defines i credits not due come:
– credits used in violation of the methods of use established by the laws in force or, for the relative excess, those used in excess of that established by the reference regulations;
– credits which, despite the presence of the subjective and objective requirements specifically indicated in the reference regulation, are based on facts not falling within the credit attribution regulation due to the lack of further elements or particular qualities required for the purposes of credit recognition;
– credits used without complying with the required administrative requirements under penalty of forfeiture.
The arrangement is characterized not only by a different sanctioning treatment (the undue compensation of non-existent credits is now punished in an amount equal to 70% of the credit and no longer from 100% to 200%; while the undue compensation of credits not due is now punished in the amount of 25% of the credit and not more than 30%) also for a double entry into force deadline: in fact, it was immediately relevant for criminal purposes, while for administrative-tax purposes, it is effective only for violations committed starting from 09.01.2024.
Well, this essentially interpretative nature of the “new” definition of non-existent and non-due credits was confirmed by ruling of the Supreme Court 17.09.2024 n. 25018, in comment.
In fact, in said ruling, we read that the definition set out in Legislative Decree 87/2024 and the related distinction between non-existent and non-due credits “retraces the differential criteria set out by the United Sections of this Court and further enriched by the jurisprudential rulings that followed”. That is to say, that the new definition introduced by the legislator of 2024 is nothing more than a specification, or an interpretation of the previous regulation, already operating in the legal system and the subject of multiple jurisprudential precedents.
The ruling in question concerns the case of a tax credit for investments in disadvantaged areas, rejected by the Revenue Agency as the deadline for using the credit, i.e. the 2nd year following the year in which the taxpayer submitted the application , had not been respected, having been compensated in the 3rd following year.
In this case, the Court of Cassation considered, in line with the new legislative definition, the credit in question as not due, leveraging the fact that the credit was not missing the constituent elements, as the taxpayer had both presented the specific request and respected the obligation to facere to which the use was subordinated (i.e., the realization of works), noting the ( failure) use within the expected time limit not as “constituent element” of credit, but as a sort of accessory element. However, this ruling does not seem to be in line with the provisions of the ruling of the United Sections no. 34419/2023 which, instead, seemed to consider the presence of a final deadline for the use of the credit as a constitutive element of the same.
The Ermellini, with this sentence, therefore considered the new definitions, as mentioned above, to be an authentic interpretation of the previous ones, meaning that they apply retroactively, eliminating the temporal distinction between violations committed before and after 09/01/2024 .
**Given the potential discrepancy between the Supreme Court rulings and the varying entry into force deadlines, what steps should Italian authorities take to ensure legal clarity and avoid confusion for taxpayers?**
## Interview: Untangling the New Definitions of “Non-Existent” and “Non-Due” Credits
**Introduction:**
Welcome to World Today News. Today, we are joined by two renowned legal experts to unpack the recent changes to Italian legislation regarding “non-existent” and “non-due” credits.
**Our Guests:**
* **Dr. Maria Rossi** – Professor of Tax Law at the University of Rome
* **Avv. Giovanni Bianchi** – Partner at a leading law firm specializing in corporate taxation
**Section 1: Defining the Landscape**
* **Dr. Rossi,** could you help our viewers understand the significance of the new definitions included in Legislative Decree 87/2024?
* **Avv. Bianchi,** how do these new definitions differ from previous interpretations? What does “interpretative nature” mean in this context?
**Section 2: Distinguishing “Non-Existent” and “Non-Due” Credits**
* **Avv. Bianchi,** could you elaborate on the criteria used to distinguish between “non-existent” and “non-due” credits?
* **Dr. Rossi,** what are some practical examples of situations where these new definitions might be applied? Could you provide instances where a credit could be deemed “non-existent” versus “non-due”?
**Section 3: Impact of Supreme Court Ruling 25018/2024**
* **Dr. Rossi,** how does the Supreme Court Ruling 25018/2024 comment on the legislative amendment?
* **Avv. Bianchi,** what are the implications of the Supreme Court ruling for businesses and individuals? Specifically, how does the ruling address the debatable concept of a credit’s “constituent elements” versus “accessory elements”?
* **Dr. Rossi,** the article mentions a potential conflict between this ruling and the previous ruling by the United Sections (34419/2023) regarding deadlines for credit use. What are your thoughts on this potential discrepancy?
**Section 4: Differing Entry into Force Deadlines**
* **Avv. Bianchi,** the article highlights different entry into force deadlines for criminal and administrative-tax purposes. Can you explain the reasoning behind this distinction?
* **Dr. Rossi,** what are the practical challenges this creates for individuals and businesses? How can they ensure compliance with these different deadlines?
**Section 5: Looking Ahead**
* **Avv. Bianchi,** what are the potential consequences of these changes for the Italian tax system?
* **Dr. Rossi,** what advice would you give to businesses and individuals navigating this evolving landscape of credit regulations?
**Closing:**
We thank both Dr. Rossi and Avv. Bianchi for sharing their valuable insights on this complex but crucial topic. We hope this interview has shed light on the nuances of the new definitions and their potential impact.
