Biennial preventive agreementfirst steps for the implementing decree of the MEF on the calculation methodology.
The Privacy Guarantor approved the scheme sent by the Ministry of Economy, albeit with some observations aimed at guaranteeing greater protection for taxpayers.
In any case it is a important stepconsidering that we have now arrived on the eve of the launch of the software for the two-year composition with creditors, scheduled for June 15, 2024the specific operational rules still need to be “grounded”.
Biennial preventive agreement, the MEF decree on the calculation methodology is released: ok from the Privacy Guarantor
The provision with which the Privacy Guarantor gave the OK to the MEF decree containing the rules on calculation methodology of the biennial composition with creditors proposals.
The draft decree transmitted by the MEF on 17 April 2024 relates in particular to the methodology on the basis of which the Revenue Agency will formulate the proposal for a biennial composition with creditors, whose specific rules are delegated by article 9, paragraph 1 of legislative decree no. 13/2024 to a specific ministerial provision.
The opinion of the Privacy Guarantor fits in particular on the front of measures to protect rights, freedoms and legitimate interests of the taxpayer in terms of decisions based on automated processing, but helps to define an initial picture of how the proposed settlement will be calculated by the Tax Office.
The Revenue Agency will be able to draw on personal data from VAT numbers contained in the tax databases, relating to personal identity and economic capacity, and specifically it will be possible to examine the information contained:
- in ISAs;
- in tax returns;
- in the archives relating to movable and real estate assets;
- in accounting documents;
- in the F24s transmitted on the payment and compensation front;
- in the taxpayer’s declarations relating to the absence of criminal convictions and crimes, in accordance with the provisions of Article 10 of the GDPR, EU Regulation 2016/679.
However, the data provided for in Article 9 of the Regulation will not be processed, including those revealing ethnic origin, political opinions or religious beliefs, or trade union membership.
The Tax Office may retain the data until the expiration of the right to tax and in any case until the settlement of any disputes. They must subsequently be deleted.
- Privacy Guarantor – provision of 6 June 2024
- Approval with observations of the MEF decree containing the calculation methodologies of the biennial composition with creditors proposals
Biennial composition with creditors, the data used for the calculation with null effect in case of non-compliance
Among the further points of interest anticipated by the Guarantor’s provision are the rules relating to who will not join to the agreement with the tax authorities.
As highlighted in the provision published on 12 June:
“the results of the processing carried out in this context are used exclusively for the purposes of the agreement and non-acceptance of the proposal does not produce any automatic negative consequences for the interested parties, with particular reference to the evaluation of their level of fiscal reliability which, for the purposes of implementation of the art. 34 of the legislative decree, remains subject to specific risk analysis activities, with the clarification that no inferred or derived variables are constructed as part of the processing (art. 6, paragraph 8)”
The data acquired by the Revenue Agency they should therefore not be used for specific checks provided for VAT numbers that will not accept the proposal for a two-year composition with creditors, with a view to greater protection of the treatments carried out.
The Revenue Agency will also be responsible for the task take all necessary measures to exclude inaccurate or out-of-date personal data from the data considered, and must therefore periodically check the quality of the same to guarantee “correctness, accuracy, completeness and consistency”.
Furthermore, the data of minors will not be processed, with the exception of “emancipated minors for whom exclusively those relating to business activities are treated”.
Biennial preventive agreement, MEF decree approved with reservations: the observations of the Privacy Guarantor
The approval of the draft implementing decree by the Privacy Guarantor is a fundamental step to arrive at the definitive launch and publication of the same in time, at least for the start of the first procedures for calculating the composition proposals starting from 15 June.
The provision dated 6 June However, it requires some additionsin particular on the processing of data relating to convictions or sentences for the purpose of ensuring compliance with the principles of “lawfulness, correctness and transparency and minimization”.
Furthermore, the Guarantor requests that the draft decree be integrated:
“specifying with greater accuracy the scope of operations of Sogei Spa as manager on behalf of the Revenue Agency, data controller, also in relation to the processing carried out for the development of the methodology subject to approval.”
Greater guarantees are also required in terms of compliance with the principle accuracy of the datathrough periodic checks. Aspects on which an integration of the impact assessment prepared by the Revenue Agency is therefore requested.
Furthermore, there are also critical issues regarding the delicate issue of data conservation. The provision highlights some discrepancies regarding the rules established by the implementing decree and the attached technical documents.
The scheme envisaged by the MEF provides in particular that:
“the data will be kept until December 31st of the eleventh following year to that of presentation of the reference declaration, or they will be kept until the deadline for the definition of any jurisdictional proceedings or to respond to requests from the judicial authority. SOGEI spa will delete the data relating to the years for which the retention period identified above has expired.”
The attachment prepared by Sogei reports the following:
“a procedure is being adopted for the anonymization of personal data at the end of the aforementioned retention period.”
In essence, if in the first instance the deletion of all data is envisaged, in the other Sogei intends to archive them, anonymized, even subsequently. A point that the Guarantor Authority does not like, which therefore asks for appropriate changes and the provision of a cancellation in full.
Finally, the impact assessment will be published on the Revenue Agency website, in order to provide taxpayers with a “list of databases used by the Agency for the development of the methodology”to ensure “a high level of transparency, also increasing taxpayers’ confidence in the use of this new tool”.
Correctives and technical steps that require the MEF to revise the implementing decree, which have now arrived close to the start of the biennial preventive agreement.
