With the resolution 82 / E / 2020, published December 24th, the Revenue Agency replied to some questions on the subject of active repentance.
Specifically, the problems addressed are the following:
- the correct determination of sanctions to be paid, for the purpose of active repentance, in case of late transmission of declarations by the subjects in charge of presentation electronically;
- the violations to be regularized to benefit from the active repentance, in case of use of a credit deriving from a tax return, subsequently corrected with exposure of a debt to be paid;
- possibility to qualify as “in favor” a supplementary declaration in which, in addition to being exposed a greater cost, a higher income, but which still ends with a more credit. With reference to this case, it is then also asked which sanction must be applied in the event that, with the supplementary declaration, the dry coupon to the originally taxed rents, erroneously, in the ordinary way;
- Possibility of to report, in the first useful declaration, the excess tax resulting from a return submitted over ninety days, and, therefore, omitted;
- possibility to compensate, in the context of a declaration presented after ninety days (and, therefore, omitted), the Irpef credit with the regional surcharge due;
- penalties to be paid to regularize the failure to present part RW within ninety days from the deadline for submitting the declaration;
- penalties to be paid to regularize failure to fill in part RW and failure to pay VAT and VAT.
With reference to first question proposed, the Revenue Agency preliminarily reminds that, pursuant toarticle 7 of Legislative Decree 472/1997, the penalty is reduced in half in case of presentation of a declaration or a complaint within thirty days from the expiry of the related term.
This provision has general character, and applies whenever the case is not governed by a different specific provision: from this it follows, therefore, that even in the case of late transmission by the subjects in charge of electronic submission the sanction can be reduced by half if the declaration is sent with a delay of no more than thirty days. There basic penalty, thus identified, it can then, further, be reduced in compliance with the ordinary provisions on active repentance.
A summary table of the reduced penalties to be paid to regularize, through active repentance, the late transmission of the declaration by intermediaries.
|Late transmission by the intermediary
Settlement of penalties for the intermediary
|Delay up to 30 days||25 euro
(1/10 of 258 euros)
|Delay from 31 to 90 days||51 euro
(1/10 of 516 euros)
|Delay of more than 90 days||Penalty from 516 to 5,164 euros
Repentance not possible
With reference to second question proposed, the Revenue Agency recalls the clarifications already offered by the resolution 36 / E / 2018, concerning the use of non-existent VAT credits as compensation: with the resolution in question it was in fact specified that the sanction for unfaithful declaration absorbs both that of failure to pay the tax and that for the offsetting of non-existent credits. The same considerations can also be extended to the use of a Irpef credit result from a incorrect tax return.
For this reason, in conclusion, only the fine from 90 to 180% of the greater tax due must be revoked, pursuant toArticle 1, paragraph 2, Legislative Decree 471/1997 (to be calculated on the amounts of the lower credit used and the greater debt to be paid), while even that provided for in the case of offsetting non-existent credits must not be revised referred to in the following article 13, paragraph 5, Legislative Decree 471/1997 (fixed in the measure from 100 to 200% of the credits themselves). Obviously, the obligation to payment of the lesser credit used in model F24 and del greater debt resulting from the declaration.
The answer to the third application, with reference to which the Revenue Agency specifies that “only the presentation of a supplementary declaration entirely in favor of the taxpayer is not subject to any sanction. And instead, due the administrative fine from 250 euros to 2,000 euros if the supplementary declaration is presented to correct errors or omissions both for and against of the taxpayer and the final results of the same is in any case represented by a more credit”.
As for, however, the incorrect taxation, in the ordinary way, of the rent to be subject to dry coupon, the Revenue Agency clarifies that no penalty is due if the taxpayer still held a behavior consistent with the will to opt for the flat rate tax regime and, with a supplementary declaration, is limited to apply the substitute tax, without indicating higher income originally omitted.
Moving on, instead, to the analysis of the fourth item, it is clarified that the credit emerging from a return presented after ninety days (and, therefore, omitted) can only be requested as a refund: the recovery of the indicated credit is in fact only allowed prior confirmation by the financial administration of the effectiveness of the same, with possible request to the taxpayer of the accounting and non-accounting documentation necessary for the aforementioned confirmation.
It is not possible to offset between emerging credit and debit tax surpluses, contextually, from a omitted declaration
If the same credit is, instead, reported in the next statement, validly submitted, for the purposes of recognition of the same, the clarifications made with the circular 21 / E / 2013: the taxpayer, therefore, can request thecertification of accounting existence of the credit in the moment following the clearance of declarations, after receipt of the notification of irregularities, producing the necessary documentation from the offices of the Revenue Agency within the prescribed period of thirty days.
Finally, with reference to the late submission of the RW form, the Revenue Agency recalls the clarifications offered with the circular 11 / E / 2010, remembering that, if the tax return has been filed on time and correctly, the compilation of the title page and RW form only, even after the deadline.
As regards, however, i sanctioning profiles:
- if the submission of the RW form takes place within ninety days from the expiry of the deadline for submitting the declaration, the fine of 258 euros (article 5, paragraph 2, DL 167/1990) as well as the penalty of 30%, for omitted payment, as perarticle 13 of Legislative Decree 471/1997, if the omission also resulted substantial effects on the taxes owed by way of Ivie and Ivafe (in this case, in addition to the fee, they remain due capital, also related interests);
- if the submission of the RW form takes place over ninety days from the expiry of the deadline for submitting the declaration, the sanction is applied, 90 to 180%, referred to inArticle 1, paragraph 2, Legislative Decree 471/1997 (without the same being increased by 1/3 or doubled because the VAT and VAT do not derive from “income” produced abroad), as well as the penalty referred to inarticle 5, paragraph 2, first or second period, DL 167/1990 (i.e. with the sanction from 3 to 15% of the amount of undeclared amounts, or from 6 to 30% in the case of activities in States or territories with a privileged tax regime).
All the penalties mentioned above can be reduced by resorting to theinstitute of active repentance.