This is an important innovation, which must be taken into due consideration when preparing the tax return.
Please note that article 1, paragraph 94, of law no. 213/2023, added to article 37 of Legislative Decree no. 223/2006, containing provisions on assessment, simplification and other measures of a financial nature, paragraph 49-quinquies, pursuant to which, in derogation of article 8, paragraph 1 (on the basis of which the tax obligation can be also extinguished by compensation), of law no. 212 of 2000, for taxpayers who have entries in the register for state taxes and related accessories or executive assessments entrusted to collection agents for total amounts exceeding one hundred thousand euros, for which the payment terms have expired and payments or no payments are still due suspension measures are in place, the right to make use of the compensation, via the F24 form, referred to in article 17 of Legislative Decree no. is excluded. 241 of 1997.
The aforementioned provision ceased following the complete removal of the contested violations.
The aforementioned rules had been criticized in doctrine and, in particular, by Assonime with the circular. of 31 January 2024, n. 1, where it was observed that those taxpayers who reduced the amount of their tax debts below the threshold of 100,000 euros could not benefit from the compensation institution, for example, 99,000 euros. It followed that, as long as they did not pay the entire amount of the debt recorded in the register, horizontal compensation was precluded.
Furthermore, it was also noted that tax debts in installments also contributed to reaching the limit of 100,000 euros.
The news –Article 4, paragraph 2, of Legislative Decree no. 39/2024, converted with amendment into law no. 67/2024, rewrites the provision envisaged by the 2024 budget law, modifying paragraph 49-quiquies of the aforementioned article 37.
In practice, it is now provided that, for taxpayers who have registrations in the register for state taxes and related accessories, as well as registrations in the register or loads entrusted to the collection agents relating to documents issued by the Revenue Agency in accordance with the regulations in force, including those for recovery deeds issued pursuant to article 1, paragraphs 421 to 423, of law 30 December 2004, n. 311, and article 38-bis of the Presidential Decree of 29 September 1973, n. 600, for total amounts exceeding 100,000 euros, for which the payment terms have expired and no suspension measures are in place, the right to avail of the compensation referred to in Article 17 of Legislative Decree 9 July 1997 is excluded, n. 241, except for the credits indicated in letters e), f) and g) of paragraph 2 of the aforementioned provision.
Compared to the previous draft of the law, with the new one, it has been specified that the entries in the register and the loads entrusted to the collection agents must concern documents issued by the Revenue Agency, also including documents for the recovery of debts not due or non-existent .
In this regard, it should be highlighted that the aforementioned provision recalls article 1, paragraphs 421 to 423, of law 311/2004. These paragraphs were repealed by article 1, paragraph 4, letter. a), of Legislative Decree no. 13/2024, taking into account however that the effects of documents issued prior to 30 April 2024 remain unchanged.
The clarification that the ban on compensation, within the aforementioned limit, only concerns tax debts for amounts relating to the AE, is also confirmed by the fact that the possibility of offsetting related credits and debts remains:
- to social security contributions due by holders of an insurance position in one of the managements administered by social security institutions, including membership fees;
- to social security and welfare contributions due by employers and clients of coordinated and continuous collaboration services;
- to premiums for insurance against accidents at work and occupational diseases.
Another important clarification concerns the provision that the compensation ban does not apply with reference to sums covered by installment plans for which no forfeiture has occurred.
The correction provided for by the new provision is welcomed. In fact, taxpayers who are up to date with the payments resulting from the installment plan can now proceed with the compensation even if the amount recorded in the register is greater than 100,000 euros.
The novel continues by establishing that, without prejudice to the provisions of the fourth sentence of article 31, paragraph 1, of Legislative Decree no. 31 May 2010. 78, which provides that the payment, even partial, of the sums registered for state taxes and related accessories is permitted by offsetting the credits relating to the same taxes.
Where the provisions in question are not applicable, the application of the aforementioned article 31, which prohibits the offsetting of credits, referred to in article 17, paragraph 1, of Legislative Decree no., remains unchanged, as written in the law. 241/1997, relating to state taxes, up to the amount of debts, amounting to more than one thousand five hundred euros, registered in the register for state taxes and related accessories, and for which the payment deadline has expired.
The rules, already provided for in the original law, regarding the application of the provisions of the aforementioned article 37 and, in particular, paragraphs 49-ter remain unchanged (the Revenue Agency may suspend, for up to thirty days, the execution of the delegations of payment containing compensations that present risk profiles) and 49-quater (if as a result of the control activity referred to in paragraph 49-ter the credits prove to be wholly or partly not usable in compensation, the Revenue Agency communicates electronically the failure to execute the payment delegation to the subject) for the sole purpose of verifying the conditions envisaged by the new law.
