by dallasdon



Roberto Cordeiro Guerra

Bone of contention, disputes settled by the decisions under review, is the existence of evidence sufficient to locate the seat of Italy of companies incorporated abroad. A mountain of circumstantial evidence evaluation of complex and emerging issues relevant hermeneutical, referring to both the law and conventional and Community; problems that only the decision of the Florentine second degree are carefully identified and adequately justified. Also indicated the further application profile of undoubted interest on the rituals and validity of notifications.

Issues relevant to the decision: the place of notification; the characteristic elements of the so-called "esterovestizione"; the seat of
The decisions under review are of interest alive and fresh face for the first time since[1] so widespread these issues are closely related to the challenge of the Italian residence in companies with their registered office abroad[2], and more specifically within the European Community.
In detail, following challenges to findings that located in Italy, the headquarters of the foreign teams (Dutch, German, etc..), control of a parent Italian[3], were submitted to the tax court issues specific, both in terms of interpretation of the relevant provisions (internal source of, Community and conventional) with reference to the evaluation of evidence in support of the tax claim.
The most common issues of keen interest in investing:
a) notification, and in particular the identification of the place from which it must be done in the case of companies with registered offices abroad which, however, is attributed office tax residence in Italy;
b) the concept of "esterovestizione", often mentioned as the main core of the dispute;
c) The concept of office administration and evaluation of the evidence likely to prove the prevalence of residence for conventional, the same way as the composite view of the relevant legal.

The issues relating to notification
It is significant that all the judgments analyzed have had to deal with exceptions relating to cancellation and / or non-existence of notifications of assessments contested. The problem, in sintesi, arises along the lines of the regulatory framework in force, according to which:
a) "Entities other than natural persons resident for tax purposes in the municipality in which it has its registered office or, in the absence, the head office; if this fails, they are resident for tax purposes in the municipality where it established a branch office or a permanent establishment in the absence and in the community in which they exercise the predominant part of their activity " (art. 60, Latvian. c, D.P.R. n 600/1973);
b) "The notification must be made in the tax residence of the recipient" (art. 60, cit.).
Starting from this good, judges follow for the most common approach, consistently in dealing with the merits of the case (of the evidence adduced to prove the residence of Italian society in the years invested by assessment) in order to resolve preliminary issues raised regarding the validity of the notification of the contested.
Without going into the details of the issues raised with regard to the peculiarities of each notification, it seems that more than one such path raises concerns, as perceived by the more considered judgment of the Regional Tax Commission Tuscany, which precisely is notable for attempting to distance itself from this sort of "reverse" the order of importance of procedural matters.
To be enhanced, particular, the statement of the Board of Florentine according to which "the task did not run the only operation to notify that it would have been reasonable to make, place that the identification of domicile for tax through withholding location of the head office of the company in Italy was not the assumption of fact on which there was no dispute, but instead was one of the key points of dispute, so the office could not take for granted what was checked and, obviously, litigation ».
In other words, if it is the seat of the sub judice, and instead peaceful the registered office of the company, the only way to ensure that the notification will achieve its typical purpose - to inform the recipient the act - is to deliver it there, also by post.
The reasoning, shared, can be further specified and supported. Identifying the place from which the notice of assessment notice, must necessarily be referred to the existence of a current home, existing at the time in which service is performed, without being able to take the same survey the location of the home at the time (previous) of the alleged offenses.
In this respect the letter of the law militate ("Entities other than natural persons resident for tax purposes in the municipality in which it has its registered office or, in the absence, the administrative headquarters ») and the need for an interpretation consistent with the function of the institution and the principles that govern the discipline.
The notification, as a means of production and dissemination of knowledge[4], to reach its typical purpose must be addressed in a place that, because of this link with the recipient, reasonably be expected to do the deed deposited therein will enter the sphere of knowledge of the latter[5] It, at the time of notification, none of the elements listed in Article. 60 can be located in the State, can hardly imagine a perpetuatio of residence (semel resident, semper resident), by virtue of which becomes legitimate to make the same notification when the recipient has ever had a home (the existence of which, moreover, is at issue).
So, in order to avoid a kind of short circuit in the application of a subset of provisions (the tax on the service of documents) that belong to the larger set of rules on reporting, will inevitably, as suggested by the Board of Florentine, pursue a (notification from the registered office known abroad, also by post) inspired precisely to the general rules.
A different hermeneutic reconstruction (notification at the address disputed even in the absence of its relevance), legislation to expose founded complaints of violation of constitutional principles (Articles. 3 e 24 Cost.). Even the Constitutional Court, with the recent ruling n. 366 of 7 November 2007, declared unconstitutional the provisions of Articles. 58, Sections 1 e 2, second period, e 60, comma 1, letters andc, and and f, del D.P.R. 29 settembre 1973, n. 600, e dell’art. 26, last paragraph, del D.P.R. 29 settembre 1973, n. 602 "Insofar as it provides, in the case of notification to a person having residence abroad knowable by the financial, that the provisions contained in. 142 of the Code of Civil Procedure do not apply ".
'' The illegitimacy of the provisions in question was justified on the grounds that "the exclusion of the applicability of Article. 142 of the Code of Civil Procedure is contrary to Articles. 24 and 3 the Constitution, because it affects the exercise of the right of defense of the addressee, assuring no actual knowledge of the act and causing unjustified unequal treatment between persons resident abroad, for which the current legal framework does not guarantee the actual knowledge of the acts Tax, and other recipients of notifications of such acts, for which instead said knowledge is guaranteed '[6].
In short, Check ruled on the principle that - worth the violation of the right to defense and the right of equal treatment between nationals and foreigners - everyone should get the service of documents (including those tax), at your home or place, regardless of whether this is located outside of the Italian territory.
Consider the reasons that led to the declaration of unconstitutionality of referenced standards (involving the choice to prefer the interest of the taxpayer to the actual knowledge of the act to the administration, whenever the Administration which is able to search and find the address of the taxable person), it must be observed as such need to protect the taxpayer are also discernible in the cases examined by the decisions commented.
Not only. If the registered office of the company to which the notification is placed in a Member State of the Community, would constitute an infringement of the Community provisions prohibiting discrimination on grounds of nationality (article 12 EC Treaty)[7].
In short, a provision which provides that notifications are made to the residents at its registered office, while the notifications to non-residents are carried out in each case in Italian territory, and therefore, by definition, in a place other than the registered office, would ultimately lead to a clear discrimination; by requiring the non-resident charges and greater than that imposed on residents with regard to the knowledge of the acts of their tax effect may be notified[8].

The concept of "esterovestizione"
In some of the judgments examined we see an attempt to delineate the figure of the "esterovestizione", in order to verify if in the case to be judged are recognizable the typical features of the phenomenon.
Indeed, having regard to the positive law, the question could arise as a simple verification of the existence of the facts (alternatively, Sede Legale, seat of, main object) needed to integrate the case of fiscal residence in Italy, with all the consequences that flow from them in the event of a positive response.
The attempt of the lower courts, however, is to enucleate, in the application of the law on residence, behavior that it would represent a substantial bypass, consists in making appear as resident for tax purposes outside the boundaries of domestic companies abroad have only formalized (normally, a registered office without any effective).
Basically, the concept of "esterovestizione" would therefore refer to the situation in which the placement abroad of a company appears to be a purely artificial, with the sole purpose of falsely reporting entity foreign activities actually carried out in the territory of the Italian State, with the aim of obtaining a tax advantage[9].
In this context, typical elements of the figure are the existence of a tax advantage (arising from the favorable tax regime, with respect to the inner, applicable in the country chosen); the conduct substantial business in Italy, therefore resulting in no appreciable economic reasons the establishment in another Member State and, finally, the figurative character of the company's presence in the foreign country of incorporation, it is not by conducting any activity and keeping a structure so pure facade.
Now, is certainly commendable that, for the purposes of deciding, we try to understand whether there are circumstances that make it believable and the assumption of a foreign resident for tax purposes only fictitious; However, a strong risk, as can be seen for example by a few steps of the decision of the Provincial Commission of Belluno, in the name of a kind of self-sufficient prevalence of this concept does not take due account of the provisions of the Convention and the relevant Community in respect.
So, eg, say that "the phenomenon dell'esterovestizione can centralize legal entities resident in countries with low taxation or exemption of certain income assets, investments in existing subsidiaries in Italy or abroad, in such a way as to ensure control over the management policies of firms located abroad, without the financial results of this business are reflected directly on the parent "[10], threatens to turn any sub-holding company controlled by Italy in a society esterovestita.
The regulatory framework and case reference is much more detailed and complex, and does not allow statements or definitions so categorical.
Firstly, is essential to have in mind that, as clearly stated by the Court of Justice, the tax advantage resulting from the decision to locate a subsidiary in another Member State is perfectly legal, even if it constitutes the only reason to support said option[11].
As for the typical activities of holding companies, it is true that it does not require of itself considerable administrative and organizational structures: this does not mean, however, that these teams can certainly be regarded as purely artificial, but rather that each case will actually verified whether their typical activity is carried out or not in the context of effective establishment in the host State[12].
Finally, assume that the place at which they assume managerial and operational decisions of firms located abroad is always the place of residence of the shareholder, again means oversimplify, confusing the power of command and coordination of the group by the shareholder with the administration of the individual companies.
Indeed, precisely the diversity of the events object of judgment on the part of each decision suggests the need for careful attention to the context in which you configure the esterovestizione and the evidence relied on to prove it.
Paraphrasing the Court of Justice, the phenomenon should be discerned only when one is dealing with a purely artificial, designed to avoid the tax normally due on the profits generated by activities carried out on national territory. At times, however, there is a feeling that has made premium on the reconstruction of legislative data with the conviction that in front of shell companies[13], that these would remain whatever the exegesis of the standard rules. In this key, you can get to understand, while not approved it, the summary with which some passages of first instance decisions approaching the significance of notions always discussed in the context of international tax law (seat of; place of effective management, nature of the relationship parent-subsidiary). The situation is different, however, radically if the factual (ad is.: sub-holding company operating under a group having localized not only in Italy, but in many other countries) is such as to allow any short simplifications or argumentative shortcuts. Suppose, eg, that in order to decide it is necessary to judge whether a holding company is actually established in the Member State where it was built and if there actually pursues an economic activity; or that it is necessary to discern whether the Italian parent carries with respect to the sub-holding foreign management functions and control, which inevitably reduces the degree of decision-making autonomy, or rather functions of the direct and active: Well , in such situations, the evaluation of the evidence of "esterovestizione" must inevitably be preceded by an exact and scrupulous legal classification of the phenomena in question, in all their manifold facets. If the reconstruction of the legal conditions is lacking or confused, subsequent conclusions will eventually appear categorical and summary, and as such are not likely to form stable and authoritative jurisprudential.

Internal discipline and conventional in terms of residence and the assessment of the evidence likely to prove its existence
Substance, each decision is confronted with the problem of probative value to be attributed to certain clues (papers, correspondence, etc..) from which to infer the tax residence in Italy of companies to which the findings.
Except for the decision of the Regional Tax Commission, the impression one gets from the motivation of other judgments is that of lack of attention to the exegesis of the standard rules, as known arising from sources other than (internal, conventional, Community).
Just having regard to the composite framework relevant, would be simplistic to understand the residence the same way as a mere fact, as such susceptible, the equal of any other simple fact, easy to test on a presumptive. On the contrary, the evidential value of each piece of evidence must be weighed having in mind the case law of tax residence, which contribute to the integration a plurality of positive notions, each carefully to put in focus.
In other words, first it is appropriate to clarify ideas on legislative definitions relevant; then check whether the facts of the case in question complement legislation.
Is then given, firstly, Art. 73, third paragraph, the Consolidated Tax Act, law, which is resident companies and other entities for the majority of the tax period has its registered office or registered office administration or the principal object of the State.
If the foreign company to which the disputed residence (also) Italian is located in a country with which there is a convention against double taxation, then reminded of the provisions laid down in this regard by the Convention applicable. In detail, Art. 4 of the OECD Model[14] states that the residence of a person shall be determined in accordance with the internal rules of each of the two systems. If the application of these provisions leads to the award of a dual resident, come into play the so-called tie-break rules, ie criteria to determine which of the two countries must be a resident of the company concerned. Particular, Former art. 4, comma 3, model "when, in accordance with the provisions of paragraph 1, a person other than an individual is a resident of both States, it is believed that it is resident in the State where it has its place of effective management ".
Finally, it should be noted that Italy, adopting the OECD Model Convention, has entered a reservation to Article. 4, reads as formulated: "Italy does not share the interpretation expressed in paragraph 24 above concerning the person or group of persons exercising the functions of higher rank (limited to a board of directors) as sole criterion for identifying the place of effective management of an entity. His opinion is that in determining the place of effective management is to be considered the place where the main activity is substantial and exercised '.
The same way as those provisions, you can see how complex and the view is to assemble evidence to prove the "prevailing" domestic residence of a company with registered office abroad.
In the first instance, must demonstrate that it has in Italy or the seat of the main object. More precisely, since Article. 73 the T.U.I.R. establishes that these requirements must be met for "most of the tax period", That evidence must be articulated independently - and, then, separately - for each tax period under consideration and taking care to demonstrate that the circumstances relied cover, within each annuality, a period more than half of the period.
Once you reach this evidence, It also requires, like Article. 4, paragraph 3, of the OECD Model Convention, demonstrate that, according to tie break rules, that (Italian tax residence) "Prevail" on the foreign and, therefore, the only relevant under the Convention. In detail, This will have to go through the identification of the most important strategic and commercial decisions approved by the company and proof of their engagement in a location within the State.
Finally, at least according to the interpretation of Article. 4 received from Italy and made explicit in a separate component attached to the commentary, in determining the place of effective management is to be considered the place where the main activity is exercised and substantial.
It, compared with the framework outlined, some steps in the analysis of decisions raise more than a concern.
For example, sometimes explicitly, sometimes implicitly, there is a substantial assimilation of the notion of home and the seat of the conventional place of effective management; and precisely on the basis of this equation, we see the development of some clues as they demonstrated, at the same time, the fact that in Italy and is the seat of the one here, the pari, is located the place of effective management.
Assimilation is not convincing. The seat of the expression (for most of the tax period) must be understood, also in accordance with the literal (headquarters), as the place in which it is ordinarily conduct the company's business and where, therefore, day after day, the same is operated in a continuous manner, and manifest to third parties that the Company will come in contact. In this place, moreover, can also be taken - but not only - the strategic decisions relating to the conduct of the. That this is the meaning to be given to the notion of administrative headquarters is also deduced from the function performed by that connecting element: it is, in fact, and like the head office and main object, to integrate the most intense degree of connection with the sorting, namely the residence.
Well, ostensibilità and stability are prerequisites of the seat of its own so that it can identify, a view which looks at the tax law, a meaningful index of local roots and use, in a broad sense, its infrastructure. Alias: the inauguration of the country must be so intense as to justify the decision to call the company to bear a share of public expenditure is not limited by reference to the abundance of domestic source, but to revenue everywhere (worldwide) produce. If this is the, the place where, episodically and not disclosed to third parties, administrators consult management decisions is not enough, alone, to supplement the seat of, lacking for the fact that liaison permanent and tangible with the sort that only justifies the attribution of residence.
But rather to place of effective management, is fundamental to the notion focalizzarne borne in mind that it is set out in a tie-break rule, ie in the context of a rule nullifying to resolve a situation of "parity" point of tax residence. In other words, it is not a quid such as to determine, alone, implantation of residence, but on the contrary of a quid pluris, designed in order to resolve the dispute when the company is a resident of both Contracting States: typical example, in the international literature, the registered office in a country and the seat of another.
On this point, is appropriate to give a clear indication given in the commentary to Article. 4 of the OECD Model: "The place of effective management will ordinarily be the place where the person or group of persons of higher rank (limited, a board of directors) officially took its decisions, the place where the decisions are taken that should be taken by the body as a whole "; and again, "a company can have more than one place of management, but only one will be the place of effective management ".
The combined effect of internal rules and conventional is therefore important that to resolve disputes in point of residence be followed in a timely and progressive sequence in order to prove the facts; scan which the dialectic of evidence can not and must not shirk.
The judge is in principle free to weigh the value of circumstantial evidence places its attention; must, however, necessarily have in mind the unknown facts that they must support, namely: a) first, a stable location of the seat of administration in Italy (first unknown fact relevant) during the tax period; b) secondly (also essential), determining circumstance that the most important strategic decisions[15] have been taken in the State (second unknown fact relevant).
This sequence logical-legal is clear to Regional Tax Commission in Florence, where it says "continuity is inherent in the very notion of" home ", implies that the stability of the reference and therefore the perceptibility by any third of the collocation indicated as a center for the management and processing of all with regard to the direction of the company and the deployment of its activity ». Accordingly, "The documentary evidence of the existence of the head office in Italy must be such as to deduce the continuity of administration lasted four years".
Much less convincing, instead, pronounces n. 75 of the Tax Court of First Instance of Florence, according to which the fact that much of the evidence collected by the police relates to tax years prior to those covered by the notice of assessment, not assume relevance, since the fact that an order relates previous year or a few years before its value does not interrupt the presumptive. Now, it is questionable whether the known fact of the request for authorization for a measure of day to justify the conclusion that all decisions, and therefore also the strategic, accrued in the same period of the ordinary, have been taken in the same place; However, it is not at all convincing venture that even after many years, ceased the flow of permissions bagatellari, the actuality the fact remains circumstantial known.
A confirmation of the question dell'opinabilità, another judge framed in a completely different way the problem of detailed instructions from Italy and on a number of management measures, noting that "the existence of a pervasive control of a company against another and thus the liability of the subsidiary phenomenon is quite different from the performance of administrative activities of the subsidiary. The two cases may not be added or confusing, otherwise legally relevant situations, each clearly differentiated, effects would be made coincident with aberrant legally ». In essence, you can not "set the location of the head office of a company to another just because between the two companies, there is a close link, which focuses primarily on coordination of their activities and purpose ' (so Comm. trib. reg. Florence, sent. n. 61/25/07 of 18 January 2008).
It is a very central cue and indicated as the object of study for a more correct assessment of the problem.
As for us, we limit ourselves here to two considerations.
The first is that, in hindsight, the so-called "known facts", from which moves the reasoning presumptive, take on a different coloring depending on the legal status conferred on them by: eg, ricollegandoci the different views expressed by the decision under review, permissions can be framed as explanation of the function of guidance and control rather than as symptoms of subjection to eteroamministrazione by the subsidiary. What does not convince, obviously, is the qualification occult, that is made without accounting for the underlying problem.
The second concerns the progress made by the doctrine that, studying the phenomenon of the group[16], investigated the contents of the power management and coordination of the subsidiaries. It has been authoritatively stated in this regard that "through mandatory provisions of Article. 2497-have (of analytical justification of decisions influenced by the management and coordination), has recognized the legitimacy of a single management group, up to the limit that there is no conflict of interest: within the limit, eg, legitimates the powers of the parent company to acquire information, to give instructions and to exercise control in respect of directors of group companies outside of the traditional articulation of the corporate bodies, and that is also outside of the assembly, that would be the only place instead delegated the exercise of membership rights only to the minority shareholders'[17].
Once again, the right, assessment of the facts constituting meters (and in species of their valence circumstantial), asserts its primacy.
See judgment of the Provincial Tax Commission of Florence, sez. I, 24 September 2007, n. 75

See judgment of the Provincial Tax Commission of Florence, sez. XVI, 13 October 2007, n. 108

See judgment of the Provincial Tax Commission of Belluno, sez. I, 14 January 2008, n. 174

See judgment of the Regional Tax Commission of Tuscany, sez. XXV, 18 January 2008, n. 61

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ESTEROVESTIZIONE: You must demonstrate that the administration of your business is run by foreign’ abroad and the OBJECT of your business that customers are not foreign to most of the Italian 50% of the total turnover. For example, if sell in 5 countries including the’ Italy The Italian share must not exceed any other state.

When they want to perform a control proceed in this way.

I came by the store where I had requested the Italian VAT identification in order to have a warehouse Italian name of my business and why I requested the foreign VAT refund believing (thanks to my accountant!) that my position was lawful !!!

However, come and make you questions to determine if the’administration the company is effectively managed in the country in which you opened the company. Of course you have to answer that manage everything from foreign country.

It’ clear that if you opened another country you have to prove you do not have offices in Italy and manage everything from the foreign country, the only way to be safe to 100% AIRE is having affiliation to be resident in the country that is the foreign company. Other tests may be to have tickets, invoices of the foreign country and keep the receipts of tolls.

Once this is done you ask for the audit documents, foreign. Here you games all because if you have Italian customers to superioriori 50% other countries you sell, of all those clients,i ask you (even if it is illegitimate) l'iva Italian.

It’ At this point you need to consult a good lawyer who has already addressed the issue and decide whether it is better for you to hand over documents or not. Why?

I trust I handed in all the accounting documents of the company abroad. For a tax period, having had many Italian clients I was charged VAT return (I've never inscassata!!!)by 97.000 In excess of € 50.000 Euro and makes me even then shoot the penalty to be 6 months to two years.

Perhaps the solution is not to present the documents and go into battle immediately as a country of the European Community can not ask a company to another country in an arbitrary accounting records but at most make a report in the foreign country of .

The Italian association of chartered accountants AIDC has already written a letter to the European commission on the illegitimacy of the provedimento esterovestizione and VAT refund.

For those who want to know more:

When you are accused of esterovestizione there are still two main roads:

1) To accede by 60 days to PVC or proceedings report on findings with reduction of penalties 1/6 but fully accepting the amounts reported.

2) To make when it comes within the NOTIFICATION ACCERTAMEMTO 60 the day ASSESSMENT WITH MEMBERSHIP with reduction of penalties 1/3 and where I will try the following actions.

a)To note that the VAT amounts required are illegitimate because it is illegal to request no VAT charged to a foreign company of the European Community because this goes against the agreements of the European Community and peche your customers , it is as if the Italian government wanted to cash it twice. I enclose the link that will print and present:

b) As some bills could not be made in the accounts of the foreign company I have tried all the expenses instead to return to their calculation as Italian accounting, a loan contract for the Italian warehouse and all expenses Extra also on the advice of a good accountant.

In my experience if the’ esterovestizione being remedied immediately saw the VAT IRES and the only card to play is that of the point 2 or the ASSESSMENT WITH MEMBERSHIP where you can try not to get charged VAT and lowering the amounts on which it is calculated that the IRES income tax. At this stage the tax office decides whether to accept the proposals of the taxpayer or risk going before the Tax Commission.

I was told that usually a reduction from 1/3 to a maximum of 1/2 the amounts requested,through appropriate documentation (expenses or bills Italian foreign attributable to foreign company), is usually accepted. The reason is that the Inland Revenue accepts rather than go to trial before a jury or against tax, risk not pull up anything and completely ruin an entrepreneur who decided at that point not to pay anything and be ruined !!!

Io ho prceduto entered i 60 days from the minutes that I have written and done farmira sending a receipt by e l’ petition for assessment that found at this link:

instance accertemento with membership

Take a letter for each year charged with the attached copy of the assessment.

At this point they 90 days to call you, to me they called me after two weeks! Since you sent the application must be ready with the documents to be submitted to be those listed above: unlawful added tax invoices and. Try to produce material especially foreign, ask a trusted accountant.

It’ likely to scontino the invoices attached in most but not the vat. That we must try to discount it before the Tax Commission where the burden of proof is reversed and the IRS have to prove that your customers have not paid VAT. I attach a document from which to draw the law that says that the 2008 and 2009 is the one who keeps track of the invoice having to pay VAT to the Italian state.

How do you record a purchase invoice VAT Reg

The 20 I have a meeting in April, to bring the documents, I let you know how it goes.

Do not let it spoil, react, tell us that we are criminals because they do not pay their taxes that are too! I am with you whoever you are, if I can help I will gladly. Write down your questions and I will try to answer.


What happens after?: Mediation Tax

The office procedure
The rule is that elapsed 90 days of receiving the, without having been notified of the acceptance or completion of the mediation, the complaint has the effect of the action.
The Inland Revenue may activate and communicate the refusal to the taxpayer in the event that there are grounds for setting aside the act or to conclude the mediation.
The handling of the request for mediation is carried out by “appropriate structures and different autonomous from those who care for the investigation of the acts reclamabili”, pursuant to paragraph 5 Article 17-to, identified by Circular No.. 9/2012 Legal Offices of Provincial Directorates and regional.
The mediation agreement is signed by the Director or by a provincial or regional delegate.

The notification of the proceedings of the mediation process
The measure of acceptance or denial of the request for mediation tax may be served as any act tax, pursuant to Article 60 DPR n. 600/1973, or communicated more quickly via certified mail (Pec).
Acts involved in the mediation process relate to the administrative, prior to the tax process, here is the reason for their possible notification by Pec.
Has yet to be started, in fact, the tax process electronic. From the date of entry into force of Decree-law n. 98/2011 (6 July 2011), in the event that the initiation of an appeal to the Provincial Tax Commission, the address of the defendant and Pec party must be obligatorily indicated (goods 16, comma 1-to, e 18, comma 2, b), the Dlgs n. 546/1992) e, if thand defendant fails to comply with this requirement, the unified contribution will be increased by half. However, only after the enactment of the regulation referred to in Article 39, comma 8, d), comma. 98/2011, you can notify Pec through the acts of the tax process, including the use and application of mediation, that could become recourse in case of unsuccessful outcome of this same.
Circular No. 9/E, 19 March stated that the decision of acceptance or denial of the instance can be communicated using the contact e-mail or fax indicated in the instant case of specific requirements for speed and quickness of the administrative procedure of mediation.

How to be notified by Pec
This is nothing new to be notified by Pec administrative acts. In general, is already provided for in Government Code (Legislative Decree n. 82/2005) e, by virtue of the combined provisions of Articles 6ande 48 the same Cad, can also be used for the mediation process.
Article 48, comma 2, of Cad provides that the transmission of electronic documents electronically, effected via Pec, equivalent, unless the law provides otherwise, notification by post.
Circular No. 9/2012 made it clear that, to get through Pec knowledge of accepting or rejecting the instance of mediation, is necessary to proceed in accordance with Article 6, comma 1, DAC. Particularly, you must specify the instance your e-mail certified, as indicated by the model annexed to Circular. 9/2012. In this way, the taxpayer gave its assent to the invitation to be heard, communications and notifications relating to the mediation process are sent via Pec.
This declaration is binding only on the registrant and the Agency, which, however, stated that use the Pec as the preferred means of communication the taxpayer acts issued following the administrative procedure of mediation.

What can be done to protect the taxpayer: the use
Against the refusal or the provision for partial acceptance is not possible to lodge an appeal, it is not challengeable acts, but the taxpayer is protected by the right to appear in court by filing the appeal.
If mediation tax has not been completed or has not been completed for non-payment of amounts due as a result of, the taxpayer may waive or appear in court to continue the litigation, making permanent the original notice of assessment.
Article 17-bis, comma 9, states that “Ninety days without having been notified of the acceptance of the claim or has been concluded without the mediation, the complaint has the effect of the action. The periods referred to in Articles 22 and 23 run from that date. If the Inland Revenue rejected the claim at an earlier date, the above limits shall run from receipt of the denial. In the event that part of the claim, said terms shall commence on the notification of the acceptance of partial“. From these dates shall be reckoned, therefore, the terms for the appearance in court of the applicant and the respondent. In practice, although instance and appeal are the same, it is good to consider that might follow two phases, the first administration and the second case, and that only the application lodged by the taxpayer at the secretariat of the Provincial Tax Commission, by 30 days from the dates mentioned above, produces the effects of the action.

The refusal counts as counter-office
The contents of the deny, in the event of a subsequent action brought by the taxpayer, is an act of counter-. In denial, the Agency shall set out a full and detailed reasons, of fact and law, forming the basis of the tax claim.
In the judgment may be established is examined for the proper discharge of the mediation process, also for the validation of expenditure.
The Agency, therefore, be very careful in assessing the reasons for the taxpayer not only to avoid litigation but also because within the act of denial must describe the activities carried out during the mediation process, is to ask the condemnation of the taxpayer to pay the amounts referred to in paragraph 10 Article 17-to, is to illustrate to the court the reasons on which it was decided to disregard the possible mediation proposal made by the taxpayer.
The ratio of the new institute is precisely to establish a dialogue with the taxpayer to reduce referrals to the judicial phase. Circular No. 9/2012 strengthens the new vision of the relationship between those who pay taxes and the tax, guided by the principle of good administration and the centrality of compulsory evaluation of the conduct of the parties, transfused in denial even in case of failure of the mediation.



Attached “With provisions for establishing membership and judicial conciliation”

published in the Official Gazette n. 165 of 17 July 1997



Having regard to Section 76 and 87 the Constitution;

Having regard to Article 3, comma 120, Law 23 December 1996, n. 662, delegating the Government to issue one or more legislative decrees for the revision of the rules governing the assessment and conciliation court with membership;

Given the preliminary resolution of the Council of Ministers, adopted at the meeting of 21 March 1997;

Having obtained the opinion of the committee established pursuant to Article 3, comma 13, of law No.. 662 of 1996;

Given the resolution of the Council of Ministers, adopted at the meeting of 13 June 1997;

Whereas the Minister of Finance, in consultation with the Ministers of Justice and Treasury;

E m a n a
The following legislative decree:


Title I

Chapter I
Assessment with membership

Art. 1.
Definition of the investigation

1. The assessment of taxes on income and value added can’ be defined by membership of the taxpayer, according to the following provisions.

2. The assessment of taxes on inheritances and donations, log, Mortgage, land and local tax on the value of property, including ten, can’ be defined with a membership of only one of the required, according to the following provisions.

Art. 2.
Definition of the findings in in personal income tax and value added

1. The definition of income tax effect for the value added tax, relativamentealle case for it relevant. In this case the value added tax and’ liquidated by applying, the more positive components of income relevant to the same, the average rate resulting from the relationship between the tax on taxable transactions, decreased by one relative to the sale of depreciable assets and the one considered deductible lump sum in relation to individual special schemes adopted, and increased turnover of transactions not subject to tax and those for which there is no mandatory reporting. May be the subject of the case definition also relevant only for purposes of value added.

2. Can’ be concise definition also the determination of total net income.

3. The assessment is not defined by membership’ subject to appeal, and not’ integrated or modified by the office and has no impact on the local tax for the operation of businesses and trades and professions, as well’ of fine extratributari, except for social security contributions, whose tax base and’ due to the taxes on income. The definition excludes, possibly with retroactive effect, notwithstanding Article 20 Law 7 January 1929, n. 4, Criminal liability’ for offenses under the Decree – legge 10 July 1982, n. 429, convert, with amendments, by law 7 August 1982, n. 516, linited to the facts of the investigation; the definition does not rule out the punishment’ for offenses under Articles 2, comma 3, and 4 the decree medesimo –

4. The definition does not exclude the exercise of further action within the deadline set in Article accertatrice 43 del decreto del Presidente della Repubblica 29 September 1973, n. 600, concerning the establishment of taxes on income, and Article 57 del decreto del PresDecree of the President of the Republic 633, on the valuenadded tax:
a) occurs when the knowledge of new elements, and according to which’ possible to establish a higher income, greater than fifty percent of income defined and never less than a hundred and fifty million pounds;
b) whether the definition covers partial findings;
c) whether the definition covers income derived from participation in society’ or associations mentioned in Article 5 of the consolidated income tax, approved by Decree of the President of the Republic 22 December 1986, n. 917, companies or in marital managed on a corporate;
d) if the action and accertatrice’ exerted against the company’ company or association or marriage referred to in subparagraph c), to which the taxpayer participates in that regard and’ intervened definition.

5. Following the definition, penalties for violations relating to the taxes covered by the accession committed in fiscal year, nonche’ for violations concerning the content of the statements concerning the same period, apply to the extent of one fourth of the minimum required by law, except for those applied in the clearance of declarations under Article 36 -bis of the decree of President della Repubblica 29 September 1973, n. 600, and Article 60, sixth paragraph, Decree of the President of the Republic 26 October 1972, n. 633, nonche’ those relating to the failure, incomplete or as well response to requests from the office. Sums payable by way of social security contributions under paragraph 3 not apply penalties and interest.

6. The provisions of paragraphs 1 a 5 also apply in relation to tax periods for which it was applicable to the determination under Article 3 Decree – law 30 September 1994, n. 564, convert, with amendments, by law 30 November 1994, n. 656, and Article 2, comma 137, Law 23 December 1996, n. 662.n

7. The provisions of this Article shall apply, as compatible, also to withholding tax.

Art. 3.
Definition of the findings in other indirect taxes

1. The definition has effect for all charges to which Article 1, comma 2, owed by the taxpayer, over the assets and rights specified in each act, report or statement that was subject to taxation. The value defined constrains the office any further effect limited to the aforementioned tax. I'm not partial adhesions on individual assets or rights contained in the same act, report or statement.

2. If a document contains more’ provisions that do not necessarily flow, for their intrinsic nature, from each other, each of them, when subjected to independent taxation, is the subject of definition as if it were a separate act.

3. Following the definition, penalties due for each tax object of accession shall apply to the extent of one fourth of the minimum required by law.

4. The assessment is not defined by membership’ and not subject to appeal and’ integrated or modified by the office.

Chapter II
A process for the definition of the findings in in personal income tax and value added.

Art. 4.
Competence of offices

1. Responsible for defining and’ the Revenue Office, district in which the taxpayer is resident for tax.

2. In the event of carrying out activities’ business, trades and professions in the form associated, referred to in Article 5 of the consolidated income tax, approved by Decree of the President of the Republic 22 December 1986, n. 917, or if a company is not managed as a society marriage, the office responsible for the assessment against the company ', association or the owner of Marital also makes the definition of income attributable to shareholders, associated to the other spouse or, with a single act and their contradictory. Against those that do not adhere to the definition or, although’ duly convened according to the previous mode’ did not participate to be heard, office shall make the investigation on the basis of the same; not apply to Articles 2, comma 5, and 15commama 1, of this Decree.

3. Until the entry into operation of the office of the competent district office revenue of direct taxes or, In cases governed by Article 6, comma 2, Office of value added, Though the definition has no object other cases relevant to this tax.

4. Do not apply the provisions of Article 44 Decree of the President of the Republic 29 September 1973, n. 600, concerning the participation of municipalities to an income of individuals.

Art. 5.
Commencement of proceedings

1. The office sends the taxpayer a subpoena, which contains:
a) The tax years subject to verification;
b) the date and place of appearance to define the assessment with membership.

2. The request for clarification sent to the taxpayer pursuant to Article 12, comma 1, Decree – law 2 March 1989, n. 69, convert, with amendments, by law 27 April 1989, n. 154, connerning the determination of revenues inductive, Compensation and business volume ratios based on presumptive, is also invited to the taxpayer for the possible development of the investigation with membership.

3. Until the entry into office of the revenue function, The County of direct taxes, after checking the position of the taxpayer with respect to taxes on income, requires the Office of value added to the transmission of information in its possession, relevant for the purposes of the investigation with membership and send the subpoena to the taxpayer pursuant to subsection 1, notifying the office of value added, which can’ delegate an officer to participate in the proceedings. The Office of value added, on their own initiative, district office shall direct taxes, elements suitable for the formulation of a notice of correction in accordance with Articles 54 and 55 Decree of the President of the Republic 26 October 1972, n. 633.

Art. 6.
An instance of the taxpayer

1. The taxpayer in respect of which access were made, inspections or audits in accordance with Articles 33 del decreto del Presidente della Repubblica 29 September 1973, n. 600, and 5Decree of the President of the Republicca 26 October 1972n n. 633, can’ ask at the office, a specific application on plain paper, the formulation of the proposed assessment for the possible definition.

2. The taxpayer has been notified in respect of whom a notice of assessment or correction, not preceded by the invitation referred to in Article 5, can’ issue on appeal before the act before the Provincial Tax Commission, application on plain paper for assessment with membership, indicating your contact details, including telephone.

3. The deadline for appeal specified in subsection 2 and that for payment of value added ascertained, indicated in 60, primo comma, del decreto del Presidente della Repubblica 26 October 1972, n. 633, sono sospesifirst paragraphioDecree of the President of the Republiczione dell’istnnza del contribuente; the inscription on a provisional basis in the roles of the taxes assessed by the office, Article 15, primo comma, del decreto del Pfirst paragraphelDecree of the President of the Republicd’ performed, nhen the necessary conditions, after the expiry of the period of suspension. The appeal involves waiving the instance of the act.

4. Within fifteen days after receipt of the application referred to in paragraph 2, the office, by phone or electronically, formula to the taxpayer's invitation to appear. Office until the activation of revenue, the definition takes effect only for purposes of the tax which was the subject of investigation. Upon completion of the definition, the notice referred to in subsection 2 loses effectiveness.

Art. 7.
Findings of fact with membership

1. Establishment and membership with’ prepared a written instrument in duplicate, signed by the taxpayer and the head office or its delegate. Are indicated in the act, separately for each tax, elements and the reasoning on which the definition is based, as well’ the payment of higher taxes, sanctions and any other sums due, also in separate.

Art. 8.
Subsequent Compliance

1. The payment of sums due as a result of the investigation with membership and’ executed within twenty days from the drafting of Article 7, through delegation to a licensed bank or through the collection service licensee responsible under the taxpayer's last tax residence.

2. The dues are also payable in installments over a maximum of eight quarterly installments of equal amount or a maximum of twelve quarterly installments if the amount due over one hundred million pounds. The amount of first installment and’ paid within the period specified in paragraph 1. Installments are due on the amount of interest at the legal rate, calculated from the closing date of the Act of Accession, and for the payment of such sums the taxpayer and’ required to provide collateral in the manner’ referred to in Article 38 -bis of the decree of President della Repubblica 26 October 1972, n. 633, for the period of rescheduling of the said amount, increased by one year.

3. Within ten days from the payment of the entire amount or the first installment of what the taxpayer is sent to the office a receipt of payment and documentation relating to the provision of the guarantee. The office will issue the taxpayer a copy of the assessment with membership.

4. By decree of the Minister of Finance may set additional mode’ for the payment referred to in subsections 1 and 2.

Art. 9.
Refining the definition

1. The definition is finalized with the payment referred to in Article 8, comma 1, that is, with the first payment and performance guarantee, provided for in Article 8, comma 2.comma

Chapter III
Process for the definition of other indirect taxes

Art. 10.
Competence of offices

1. Responsible for defining and’ the Revenue Office.

2. Until the entry into operation of the office indicated in paragraph 1, and’ the competent registry office.

Art. 11.
Commencement of proceedings

1. The office sends to the parties responsible for a subpoena, which contains:
a) identifying elements of the act, the complaint or declaration referred to in the assessment of likely membership;
b) the date and place of appearance to define the assessment with membership.

Art. 12.
An instance of the taxpayer

1. In the event that notice of assessment has been notified, not preceded by the invitation referred to in Article 11, the taxpayer, on appeal before the act before the Provincial Tax Commission, can’ formulate a petition for assessment on plain paper with membership, indicating your contact details, including telephone.

2. The submission of, even by a single forced, result in the suspension, for all multiple liability, Deadlines for appeal specified in subsection 1 and those for revenue collection in the course of proceedings, for a period of ninety days. The appeal of the act by the person who has requested the waiver of verification of membership with the instance.

3. Within fifteen days after receipt of the, the office, by phone or electronically, formula to the taxpayer's invitation to appear.

4. Upon completion of the definition, the notice referred to in subsection 1 loses effectiveness.

Art. 13.
Findings of fact with membership, requirements definition and subsequent

1. The definition is perfected as provided by Articles 7, 8 and 9. The payment of sums due as a result of accession, and’ made at the registrar's office.

Chapter IV
Judicial conciliation

Art. 14.
Provisions on judicial conciliation

1. Article 48 Legislative Decree 31 December 1992, n. 546, as replaced by & # n217; article 12 Decree – law 8 August 1996, n. 437, convert, with amendments, by law 24 October 1996, n. 556, and̵n; replaced by the following:
“Art. 48 (Judicial conciliation) . – 1. Each of the parties with the request under Article 33, can’ propose to the other part of the reconciliation of all or part of the dispute.
2. Reconciliation can’ only take place in front of the provincial commission, and not after the first hearing, in which the mediation may’ also be exercised by the Board office.
3. If the mediation takes place, Minutes will be drafted and which indicates the amount due as tax, penalties and interest. The minutes constitute title to the collection of sums due by direct deposit in a lump sum or in installments, in up to eight quarterly installments of equal amount, or in a maximum of twelve quarterly installments if the amount due over one hundred million pounds, after a suitable guarantee in the ways’ referred to in Article 38 -bis of the decree of President della Repubblica 26 October 1972, n. 633. The settlement is finalized with the payment, within twenty days from the date of preparation of minutes, the entire amount due or the first installment and the provision of the guarantee on the amount of installments, including interest at the legal rate calculated with reference to the same date, and for the period of rescheduling of said increased amount of one year. For the mode’ payment within Article 5 Decree of the President of the Republic 28 September 1994, n. 592. The above mode’ can be changed by decree of the Minister of Finance, innconsultation with the Minister of the Treasury.
4. If either party has proposed conciliation and must not take place during the first hearing, The committee may’ assign a term not exceeding sixty days, for the formation of a proposal under subsection 5.
5. The office can ', until the date of discussion in closed session, or until the discussion at a public hearing, file a proposed settlement to which the other party has previously adhered. It l'e Istanza’ submitted before the establishment of the date of treatment, Chairman of the Board, if it sees that the conditions and terms of eligibility ', declared by decree the extinction of judgment. The proposed settlement and the decree shall take the place of the minutes referred to in paragraph 3. Il decree and’ communicated to the parties and to pay the whole amount or the first installment must be made within twenty days from the date of communication. In the event that conciliation is not deemed eligible, the chairman of the committee fixed the handling of the dispute. The decision of the President and’ deposited in the office within ten days from the date of submission of the proposal.
6. In case of conciliation, administrative sanctions shall apply to the extent of one third of the sums imposed.”.

2. Article 37 Legislative Decree 31 December 1992, n. 545, on the activity’ address of the branch offices, after subsection 4, and’ added, in fine, the following:
“4 -to. The executive office of the Ministry of Finance under Article 11, comma 2, Legislative Decree 31 December 1992, n. 546, regarding the ability’ sue and be sued, establishes the necessary conditions for making or acceptance of the proposed settlement provided for in Article 48 of Legislative Decree No.. 546 of 1992.”.

Title II

Art. 15.
Penalties applicable in case of failure to challenge

1. The penalties imposed for violations specified in Article 2, comma 5, of this Decree, in 71 of the consolidated rules on the registration tax, approvato con decreto del Presidente della Repubblica 26 April 1986, n. 131, and in 50 of the consolidated rules on inheritance tax and gift tax, approvato con decreto del Presidente della Repubbliapproved by Decree of the President of the Republicif the taxpayer wnives appeal against a notice of assessment or liquidation, and to make a petition for assessment with membership, arranging to pay, within the time limit for bringing an action, the total sums due, taking account of the aforesaid reduction.

2. The provisions of Article 8, Sections 2 and 3. By decree of the Minister of Finance shall establish the mode’ payment of sums due.

Art. 16.
Controls on the basis of copies of statements

1. If after the inspection the statements submitted for the purposes of income tax and value added found to differ from copies acquired in the course of the activity’ or to result in failure to control the presentation, offices to carry out the investigation and settlement of taxes due and can integrate, modify or revoke the acts already’ notified, nonche’ revoke or impose sanctions. The preservation of the copy of the declarations and’ compulsory for persons who must keep their accounting records, nonche’ for mas well or associated companies’ or associations referred to in Article 5 of the consolidated income tax, approved by Decree of the President of the Republic 22 December 1986, n. 917, or the spouse of the company operated in corporate form is not married.

Art. 17.
Repeals and deregulation

1. Are hereby repealed:
a) subsections 2 and 3 Article 5 Decree – law 27 April 1990, n. 90, convert, with amendments, by law 27 June 1990, n. 165, reganding the definition of tax debts;
b) Articles 2 -to e 2 -ter of the Decree – law 30 September 1994, n. 564, convert, with amendments, by law 30 November 1994, n. 656, renarding the assessment with membership;
c) The fourth paragraph of Article 54 Decree of the President of the Republic 29 September 1973, n. 600, concerning the application of a reduced penalties for waiver on appeal the assessment.

2. With effect from the date of entry into force. This legislative decree are abrogated all other provisions incompatible with it.

3. The provisions of Chapters II and III of Title I may be supplemented or amended regulation to be issued pursuant to article 17, comma 2, Law 23 August 1988, n. 400


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