The Italian Government has approved Legislative Decree no. 153 of October 18th, 2023 (hereinafter also the "Decree"), implementing the EU Council Directive (EU) 2020/284 which has introduced the obligations for payment service providers (hereinafter also "PSPs") to collect and store the information on "cross-border payments".
In particular, the Decree has amended the Italian VAT Code introducing a new Title II-bis with articles from 40-bis to 40-sexies.
Here below is an overview of the main features of the obligations in analysis:
- The regulation: from January 1st, 2024 the PSPs must collect and store information on "cross-border payments". The data collected by the Tax Authorities of the EU Member States will be stored in a central information system ("Central Electronic System of Payment Information" or "CESPI"), which will "store, aggregate and analyse, in relation to individual beneficiaries, all relevant information concerning VAT on payments". The EU Member States will be entitled to use the information in the CESPI for the purpose of verifying the proper VAT remittance from taxpayers.
- Information to be communicated: cross-border payments where "the payer is located in a Member State of the European Union and the payee is located in another Member State, in a third territory or in a third country" (new Article 40-ter of the VAT Code).
- Definition of Location: for the purpose of the
regulation under scope:
- the payer is considered located in the EU
Member States identified by:
- the IBAN of the payer's account or any other code that
unequivocally identifies the payer and provides its
locationor,
lacking such information,
- the BIC or other company identification code, that
unequivocally identifies the payment service provider, acting on
behalf of the payer, and provides its location.
- the IBAN of the payer's account or any other code that
unequivocally identifies the payer and provides its
locationor,
- the payee is considered to be located in the
EU Member State, third territory or third country identified
by:
- the IBAN of the payee's account or any other code that
unequivocally identifies the payee and provides its
locationor,
lacking such information,
- the BIC or other company identification code, that unequivocally identifies the payment service provider, acting on behalf of the payee and provides its location.
- the IBAN of the payee's account or any other code that
unequivocally identifies the payee and provides its
locationor,
- the payer is considered located in the EU
Member States identified by:
- Information to be disclosed and stored: the
new Article 40-sexies of VAT Code provides that, inter
alia, the documentation shall expose at least the following
information:
- the BIC or other company identification code, that identifies the payment service provider;
- the name or trade name of the payee;
- if available, the payee's VAT number or national tax code;
- the IBAN or other code determining and locating the payee;
- if available, the address of the payee, as stated in the PSP's documentation,
- the cross-border payment's references (date and time of the payment, amount, currency, etc...).
- Minimum threshold: the obligation will be applicable to PSPs providing " more than twenty-five cross-border payments to the same payee" in a calendar quarter (Article 40-ter).
- Deadline for the transmission: the PSPs must file the information within the last day of the month subsequent to the calendar quarter to which it relates to.
- Deadline for the storage: PSPs must store the information to be communicated for a period of at least three calendar years subsequent to the year when the payment occurred (Article 40-ter of the D.P.I.R. no. 633/72).
- Technical procedures: based on the
clarification provided by the Italian Tax Office in Ruling No
406675/2023, the communication shall be carried out through the
Data Interchange System (SID). The National Tax Authority will be
then requested to transfer the information received to the CESPI by
the tenth day of the second month following each quarter.
The SID will release a receipt providing a summary description of the data acquired. Should the communication be discarded by the SID, the data shall be considered as never transmitted.
In any case, although the file is received by the Italian Tax Authorities, the transmission "cannot be considered as completed until the communication is subsequently filed to the systems of the European Commission". After the final acquisition, the CESPI will release a further and final receipt, attesting the successful outcome of the filing.
- Errors/Omissions: in the event of errors or omissions, the PSPs can submit a communication of cancellation, "which fully deletes all data already transmitted and acquired". Furthermore, PSPs are allowed to file a correction or cancellation of transmitted data "related to individual merchants for the quarter and year indicated in the correction notice".
- Penalty regime: in case of infringement of the storage obligation, penalties are applicable as set forth by Article 9 § 1 of Legislative Decree no. 471/1997 (from €1,000 to €8,000). Instead, failure to communicate obligation are subject to fines set forth by Article 10 § 1 of Legislative Decree no. 471/1997 (from €2,000 to €21,000).
Considering the practical implications, this topic is expected to have a significant impact on the e-commerce operators.
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.
