Income to be purified, present and past declarations to be verified (including ISA) and advance payments to be re-determined: for accountants the two-year preventive agreement from an opportunity to do business risks revealing itself as a professional cutter.
In addition to evaluating the convenience of adhering to the agreement with their clients, in fact, professionals must also deal with the risk of decay from the agreement for any errors committed in the application of the instrument which, given its complexity, are far from remote.
Hence the consequent questions to ask within the studies: the fee requested for consultancy in the phase of joining the agreement, is it adequate for the potential professional risk involved?
To answer the question, however, it is necessary to consider and analyze the many variables at play.
As anticipated, in fact, together with the difficulties strictly related to calculations to quantify and declare income to the tax authorities to be taken as a basis for formulating the proposed agreement and the new one tortuous determination mechanism of the advances in the first year of application of the institute, professionals must also deal with the multiple causes of forfeiture as well as dealing with the practical total regularity of declarations required not only in the concordat years but also in the one preceding accession.
Impeccable statements
In article 22 of legislative decree no. 13/2024 (which introduced and regulates the biennial preventive agreement) regulates the causes of forfeiture of the agreement with effects that impact both the declaration taken as the basis of the agreement and the previous one.
In paragraph 1 of the aforementioned article, the first three letters a), b) and c) make it clear how strong the link is between adhesion to the pact and (almost total) regularity of declarations.
Letter a) in fact provides that the agreement ceases to have effect for both of its tax periods if following verificationin the tax periods covered by the agreement, the existence of undeclared assets or the non-existence or non-deductibility of declared liabilities is found, for an amount exceeding 30% of the declared revenues.
It should be specified that the regularity described above must be found not only in the “agreed” two-year period but as always indicated in letter a) in the comment also in the tax period preceding membership.
The fact that the benefits of the instrument could potentially be lost following the sole issue of the assessment, even if, following an appeal, the act is then annulled by the tax judges, forces professionals to seriously consider issuing a positive opinion for the use of the agreement to those clients whose data in the declaration are made up of items generated by assessments not in line with the Revenue Agency’s orientation.
Also worth considering is the fact that on medium-low incomes the 30% “deductible” is also reduced with the risk of being easily exceeded by the administration’s findings.
Letter b) instead establishes the non-modification of the declarations in case of choice to use the mechanism, establishing that it lapses if, following modification or integration of the tax return, the data and information declared by the taxpayer determine a different quantification of the incomes or the value of net production compared to those on the basis of which the acceptance of the composition proposal took place.
In short, once inside the agreement you can start making declarations only in rare casesotherwise the agreement with the tax authorities falls through.
Letter c) on the other hand establishes the impossibility of making mistakes when joining the agreement, establishing that the agreement ceases if data that do not correspond to those communicated for the purposes of defining the proposal are indicated in the tax return.
Isa also regular
Article 22 paragraph 2 letter b) instead prescribes as an event that leads to forfeiture also the inaccurate or incomplete communication of the data relevant for the purposes of applying the indices referred to in Article 9-bis of Legislative Decree No. 50 of 24 April 2017, converted, with amendments, by Law No. 96 of 21 June 2017, to such an extent as to determine a lower income or net value of the production subject to the agreement for an amount greater than 30%.
In this case, however, there is the possibility of avoiding forfeiture regularizing communication with application of active repentance.
Calculating the income from the agreement
The income to be communicated to the tax authorities when completing the CPB form (biennial preventive agreement) must be adjusted for some components indicated in articles 15 and 16 of legislative decree 13/2024 and subject to recent amendments approved by the Council of Ministers with a corrective decree in the process of being published in Official Journal.
This aspect should not be treated lightly either, as any errors made at this stage may result in the forfeiture of the agreement.
For the purposes of “agreed” business income, the rules are dictated by the aforementioned article 16, according to which the relevant income is identified with reference to article 56 of Presidential Decree 917/1986 (the consolidated income tax law), for smaller companies to article 66 of the same consolidated law and for Ires entities to the provisions of section I of chapter II of title II of the TUIR.
The income determined as above must be calculated without considering capital gains realised pursuant to Articles 58, 86 and 87 of the Consolidated Law on Income Tax and active windfalls pursuant to Article 88 of the Consolidated Law on Income Tax, as well as capital losses and passive windfalls pursuant to Article 101 of the aforementioned consolidated text of income taxes.
The corrective decree in the purification phase also adds credit losses and any profits or losses deriving from participations in “transparent” capital companies or those adhering to the regime referred to in Article 115 or 116 of the Consolidated Law, or profits distributed, in any form and under any name, by companies and entities referred to in Article 73, paragraph 1 of the Consolidated Law on Income Tax.
Article 15 instead defines the scope of the agreed income for professionals, establishing that the starting data it is quantified according to the provisions of article 54 of the Tuir and then adjusted from capital gains and losses and from income or income quotas relating to participations in entities referred to in article 5 of the aforementioned Consolidated Law and, added to the corrective decree, also from the fees received following the transfer of customers or intangible elements, attributable to the artistic or professional activity referred to in paragraph 1-quater of the aforementioned article 54.
The advance payments with the new increase
The corrective decree provides for a new method of determination of advancesi in the initial adhesion phase to the agreement which is not very linear to manage with the associated risks in the event of an error.
The new methodology provides that, if you want to use the historical method, the advance payment determined must be calculated with an increase in the amount equal to 15% (for flat-rate taxpayers it is 12% and 4% for start-ups) of the difference, if positive, between the agreed income and the business or self-employment income declared for the previous period, adjusted as provided for by the aforementioned articles 15 and 16 of Legislative Decree 13/2024.
For Irapthe increase is equal to 3 percent of the difference, if positive, between the agreed net production value and that declared for the previous period.
This clearly complex calculation also represents a professional risk.
Although in the event of a calculation error, the agreement will be forfeited only if the difference requested by the Revenue Agency is not paid with automated control pursuant to Article 36-bis of the Presidential Decree no. 600 of 1973, always with the possibility of regularising the omission with voluntary disclosure, penalties for non-payment they could remain with the professional.
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