What we are describing is one of the many cases of folders with requests for payment of flat-rate VAT combined with the payment of the ISI entertainment tax which systematically arrive at equipment management companies in paragraph 7 of 110 TULPS upon notification from the system or from the Customs Agency and of Monopolies (ADM).
For the fifth time since 2003, a sales and management company, now closed, has received a notice from the Revenue Agency (ADE) with a request to pay flat rate VAT and related charges for the year 2019.
The company, through the owner, a natural person, forwarded a request for relief and a subsequent request for self-defense, alleging that the request was incorrect, as the company was under ordinary accounting regime by obligation for over 20 years and the VO framework was crossed out only in 2018 because the turnover was lower than the expected limits.
The appellant company declared that it has continued with this regime as it has for years, recalling that this restriction is imposed by law for a three-year period, this framework has not been crossed in subsequent years by taking advantage of this rule and it has always made monthly VAT payments and payments.
As for the consequences of failure to communicate the option, both the dated date has been recalled Resolution del 15/07/1991 prot. 430623 of the Ministry of Finance that the maxim of sentence 21/05/2010 n. 813 of the Central Tax Commission in addition to the order of the Court of Cassation n. 15178 of 16.7.2020 where it recalls the orientation of the legitimacy jurisprudence according to which the failure to declare the option for the application of the ordinary regime can be replaced by conclusive behaviour since, pursuant to art. 1, co. 1 Presidential Decree 10.11.1997 n. 442, the conclusive behaviors constitute elements from which to deduce the regime applicable in concrete terms, in accordance with Cass.n.20421 of 26/09/2014, Rv. 632180 – 01; conf. Cass., n. 3013 of 12/02/2007, Rv. 596108 – 01; Cass., n. 8114 of 22/04/2016, Rv. 639698 – 01), to name just a few.
Lastly, the appellant owner recalled the very recent Judgments of CG2° Liguria n. 942 of 16/12/2022 and n. 301, of 21/04/2023 for identical events and other orders or acceptances of relief.
Finally, the Agency's investigating office having failed to attach to the file the document, unknown to the appellant, with which either the ADE or the ADM reported the violation found during the control of the entertainment tax, the notice of dispute from the Revenue Agency was found to be illegitimate in the absence of the provision from the Customs and Monopolies Agency relating to the entertainment tax on the content of which the request for recovery of the undue flat-rate VAT was based.
After several reminders and stumbles and after the further request to show the balance sheet and register of fees, the request for relief and self-defense was accepted close to the deadline of 60 days + weekdays.
Moral: this is just one of the many requests in this sense that are sent annually to management companies, it is not clear ratio of the repetitiveness of the request and from whom it arises given that both Agencies are referenced in the document "ON REPORTING FROM THE MONOPOLY REVENUE AGENCY". The art. 54 bis of Presidential Decree 633/72, referred to, states: "making use of automated procedures, the financial administration proceeds, by the beginning of the period for submitting the declarations relating to the following year, to the payment of the tax due based on the declarations presented by the taxpayers".
Given the repetitive problem, it would be right for the Legislator to intervene, so as not to waste time and money on both the controlling Administration and the taxpayer. This case was resolved well but it didn't always happen this way, as this newspaper has already reported, consequently the need to appeal to the tax commissions with considerable expense and concern for the taxpayer.
The appellant, heard by the Jamma editorial team, draws the attention of the Executive by recalling: "When someone defined some requests from the tax administration as "State Protection", well these requests for VAT not due are such, because after years money is requested and a useless waste of time is imposed, when it would be enough that with each payment of the tax on ISI entertainment it would be possible to declare under which regime the company operates and, naturally, that this declaration should be registered by the ADE or ADM system".
