By adding the new paragraph 49-quinquies into Article 37 of Law Decree no. 223/2006, Article 1, paragraph 94 of Law no. 213/2023 (2024 Budget Law) introduced a prohibition on credit' offset in case of tax assessment notices exceeding € 100,000.00. The new rule will be effective from July 1st, 2024.
In particular, the provision establishes that the right to offset credits (set forth in Article 17 of Legislative Decree no. 241 of July 9th, 1997) is excluded for taxpayers who have tax notices or enforceable tax assessment assigned to the "Agente della Riscossione" (the Italian Enforcement branch of the Revenue Agency) for (i) amounts exceeding € 100,000.00, for which the payment terms have expired and (ii) payments are still due or there are no suspension measures in place.
Scope of the prohibition
The prohibition only applies in case of expired tax assessments with no suspension measures in place or executive tax assessment assigned to to the "Agente della Riscossione" for amounts exceeding € 100,000.00.
This prohibition will not be applicable to formal controls (so called "Avvisi bonari") or liquidation notices or
assessments notices which are not yet enforceable (which implies that they are yet to be notified).
The quantitative limit of €100,000.00 has to be considered from an overall perspective, so a role of €50,000.00 and an executive assessment notice of €60,000.00 legitimise the prohibition.
One aspect that raises particular doubts is that, in accordance with the Article 1 paragraph 94 of Law no. 213/2023, the prohibition applies if payments are still due and, in general, "ceases to apply after the complete removal of the alleged violations".
Therefore, it seems that the payment of the first instalment of an repayment plan (Article 19 of Decree of the President of the Italian Republic no. 602/73) is not subject to the prohibition to offset. This is an issue on which the legislator should provide clarifications.
Finally, the new rule expressly mentions "imposte erariali", thus including, primarily, charges related to income tax, to the VAT, to the registration tax, to the inheritance and donations tax etc. Other credits, such as the RU credits (e.g. research and development bonus), local taxes and pension contributions (INPS) are not considered for the purposes of €100,000.00 limit.
Non-offsettable credits
This recent provision seems to forbid credit offsetting tout court, unlike the older rule, article 31 of Law Decree no. 78/2010, concerning taxpayers who have tax assessments exceeding € 1,500.00 which allows the compensation of the excess amount. Therefore, for example a tax assessment equal to €120,000.00 would forbid tout court any compensation.
Moreover, the object of the offset does not concern only credits for "imposte erariali", as provided in the article 31 of the Decree Law no. 78/2010, but any kind of credits. So, for example, the offsetting of credits which are introduced by special legislation and typically indicated in the RU section of the tax return, will be forbidden.
Sanctions
The provisions of paragraphs 49-ter (the Tax Office may suspend, up to thirty days, the execution of payment including credit offsets that present risk profiles) and 49-quater (if, as a result of the control activity pursuant to paragraph 49-ter, the credits turn out to be entirely, or partially, unusable for offsetting purposes, the Tax Office shall inform the taxpayer) of Article 37 of the Decree Law no. 223/2006 shall be applied in order to verify the conditions specified in paragraph 49-quinquies.
The offsetting prohibition is not specifically sanctioned, therefore, except in case of a prior blocking of the payment as previously specified, a penalty equal to the 30% will be applied for undue offsetting.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
