The Second Instance Tax Court of Justice of Lazio has expressed its opinion on the merits of a long dispute involving an Apulian merchant and the Customs and Monopolies Agency.
With a 2021 ruling, the Provincial Tax Commission of Rome accepted the appeal lodged against the assessment notice issued by the Monopolies Agency Directorate of Puglia, Molise and Basilicata, notified to the owner of a commercial business, in his capacity as a pro quota jointly and severally liable party. with the foreign bookmaker, for the bet collection activity carried out, with which the Single Tax for the year 2013 was determined for the physical bet collection activity on behalf of the foreign bookmaker without authorization to operate in Italy.
The first judges accepted the appeal, considering the exception raised by the appellant regarding the lack of tax basis regarding the documented cessation of the activity in 2011 to be absorbing.
The ADM appealed, deeming the first judges' decision based on the cessation of activity to be erroneous, requesting the reform of the sentence and the decision on the legal costs of the litigation.
The Tax Court of Justice accepted ADM's appeal. The contested assessment notice, after having acknowledged the actual volume of gaming collections and the sums due as a single tax on betting, promptly recalls the essential content of the GdF report which also includes a list of point managers of bet collection in Italy, who collect the bets. From the investigations conducted by the Guardia di Finanza and the Customs and Monopoly Agency, it emerged that the operator, despite having closed his commercial activity in 2011, continued to collect bets in other ways in total evasion of the single tax.
In the present case, the agency considered the assessment carried out by the Guardia di Finanza as appropriate, which used, first of all, the IT media provided by the foreign company to which the appellant referred, from which the amount of bets made emerged also in the point of sale managed by the appellant, in addition to the value of the average collection of the province deduced from the data recorded in the national totalizer. The taxpayer did not provide evidence contrary to the assessment carried out by the Office. With regard to the territoriality requirement for the application of the single tax which could not be requested in Italy due to the bookmaker being a subject of foreign law, as well as the lack of passive subjectivity of the affiliate (and consequent lack of solidarity of the bookmaker ). The registered office of the bookmaker in another country of the Union is not relevant given that it is the collection of bets that constitutes the objective prerequisite for the application of the tax. The taxable person is the CTD which allows the bet and the agreement is concluded in Italy. The fixed odds bet understood as a bet for which the sum to be collected, in the event of a win, is previously agreed upon, represents a contract between the Italian merchant and the player (better) or, in any case, even if the player's proposal is transmitted electronically abroad, this does not constitute a relevant element, given that the activity takes place in the territory of the State through operators who operate " on behalf” of the foreign entity.
As for the subjective assumption, this Board observes that the single tax applies to the amount of bets and not to the income received by the community operator in relation to the business risk that it assumes.
The operator is required to select bettors by applying the legal prohibitions and acting on his own to ascertain and evaluate the existence of the conditions that allow gambling. Furthermore, the CTD constantly retains part of the sums collected and acts at its discretion in establishing the methods of monitoring the counter to which the bets are sent, identifying the staff to be used for this purpose, both in quality and quantity. The CTD therefore carries out competition management activities through an autonomous entrepreneurial organisation, in joint liability with the bookmaker and it is therefore unquestionable that the activity carried out by the same, similar to management on behalf of third parties, must be subject to tax.
The Italian rules equate, for the purposes of being subject to the single tax, those who manage betting on their own behalf to those who do so on behalf of third parties, such as CTDs. In this last case we are not in the presence of a mere intermediation activity, but of a real betting agency that accepted and paid the winnings with cash.
