Italy

Taxable period

The ordinary taxable period is equal to 12 months. Conformity with the calendar year is not requested. In particular cases, the duration of the taxable period can be different from 12 months (e.g. newly established companies may be allowed to have taxable periods of up to 18 months; companies that are involved in extraordinary transactions [merger, de-mergers, etc.], as well as companies that are liquidated, may have taxable periods shorter than 12 months).

Tax returns

From 2024, as a general rule, IRES and IRAP returns must be filed by the end of the tenth month following the tax year-end (i.e. 31 October for calendar-year entities).

The filing deadline for the WHT agent return is 31 October of the following year.

Payment of taxes

For IRES and IRAP purposes, the tax law provides for both advance payments and settlement payments. As a general rule, the advance payments are equal to the net tax liability for the previous tax period and are due during the tax period to which they refer. The advance payments due are equal to 100%.

Advance payments are split into two instalments:

• 40% by the end of the sixth month following the tax year-end.
• 60% by the end of the 11th month following the tax year-end.

For taxpayers subject to the so-called Synthetic Index of Tax Reliability, please refer to the next paragraph. The advance payments have to be split into two equal instalments.

Settlement payments are due by the end of the sixth month following the tax year-end to which they refer to.

Tax payments should be performed through a specific form to be electronically filed to the tax authorities (i.e. F24 form).

Offsetting of taxes

Payables and receivables (not claimed for refund) resulting from a return regarding different taxes are allowed for off-setting within a yearly limit of EUR 2 million.

Furthermore, in order to offset tax credits exceeding EUR 5,000, a so-called ‘conformity mark’ affixed by a qualified professional on the related return is required. In addition, there is an obligation to channel the filing of the F24 form through the tax authorities system (so-called ‘Entratel’) in case of offsetting tax liabilities with other tax credits.

No offsetting is allowed in case of unpaid taxes resulting from an official payment notice and exceeding EUR 1,500.

From 1 July 2024, a general prohibition on offsetting has been introduced in case of expired tax rolls or enforceable assessments in excess of EUR 100,000.

Administrative penalties

For the violations committed as of 1 September 2024

Failure to file a tax return results in a fixed penalty of 120% of the taxes due. Minimum penalties (ranging from EUR 250 to EUR 1,000) are applicable if no tax liability emerged in the return.

A tax return showing either a taxable income lower than the one assessed or a tax credit higher than those owed to the taxpayer (i.e. an untrue tax return) results in a fixed penalty of 70% of the higher taxes ultimately due.

Omitted and/or late payments of taxes, of whichever kind and nature, result in a penalty equal to 25% of the unpaid/late paid tax. However, in cases where the delay is within 15 days, the penalty is equal to 1% per day (up to 12.5%); if the delay is between 15 and 90 days, the penalty is equal to 12.5%.

For the violations committed up until 31 August 2024

Failure to file a tax return results in a penalty ranging from 120% to 240% of the taxes due. Minimum penalties (ranging from EUR 250 to EUR 1,000) are applicable if no tax liability emerged in the return.

A tax return showing either a taxable income lower than the one assessed or a tax credit higher than those owed to the taxpayer (i.e. an untrue tax return) results in a penalty ranging from 90% to 180% of the higher taxes ultimately due.

Omitted and/or late payments of taxes, of whichever kind and nature, result in a penalty equal to 30% of the unpaid/late paid tax. However, in cases where the delay is within 15 days, the penalty is equal to 1% per day; if the delay is between 15 and 90 days, the penalty is equal to 15%.

Self-disclosure

Self-disclosure of tax law breaches is allowed by the payment of the higher taxes and reduced administrative penalties (computed on the floor of the applicable range of penalties for the violations committed up until 31 August 2024).

The actual reduction of penalties depends on the time elapsed between the occurrence of the breach and the self-disclosure itself (i.e. different interim thresholds apply). The penalty is reduced from 1/10 if the correction is done within 30 days (for an omitted/lower tax payment only) up to 1/4 (upper floor) if the correction is carried out after the issue of a pre-assessment deed (i.e. schema d'atto). 

The starting of an audit does not prevent the possibility to amend tax returns or to carry out late tax payments. In any case, the possibility to apply the self-disclosure is prevented after the issuance of final notice of tax assessment (i.e. avviso di accertamento) or tax redetermination (i.e. avviso di irregolarità).

Special rules apply where similar violations are repeated over various years.

Synthetic Index of Tax Reliability (the so-called ISA)

Starting from FY 2018, the so-called Sector Studies Assessment (i.e. special tax control procedures for those enterprises whose total turnover does not exceed EUR 7.5 million) has been replaced by a system of indexes to identify and reward reliable taxpayers (now applicable for the taxpayers which total turnover does not exceed EUR 5,164,569). 

In particular, the ISA represents an economic and statistical methodology to determine the level of the tax reliability of the taxpayers. A low level of reliability will increase the risk to be included in the list used by the tax authorities in order to select the taxpayers to be audited.  

Advanced biannual agreement (i.e. ’concordato preventivo biennale’)

Institution of the ’concordato preventivo biennale‘ by Article 7 of Decree Law no. 13/2024 is an arrangement reserved for (i) taxpayers applying Synthetic Index of Tax Reliability (so-called ISA) and (ii) taxpayers under the flat-rate regime provided by Law no. 190/2014 (so-called ’forfettari‘). This consists of the proposal by the Italian Revenue Agency of a forecast, for the following two-year period, of the income from business activity for IRES and IRAP purposes, in order to establish the taxes due in advance.

Tax ruling

The tax ruling is an instance where the taxpayer directed a behaviour for tax purposes to the tax authority before implementing it; its scope is to seek clarification on the interpretation of a rule objectively uncertain, related to state taxes, to be applied to concrete and personal cases.

The procedure can also be started by non-resident taxpayers, by WHT agents, and by persons in charge of fulfilling the tax payments.

The tax authorities must admit to the procedure within 30 days from the receipt of the instance; however, tacit acceptance from the tax authorities applies. The procedure that involves a contradictory procedure between the tax authorities and the taxpayer ends within 180 days from the receipt of the instance.

The content of the instance could be on the transfer pricing, the application of rules to attribute profits and losses to a PE, the tax treatment of dividend, interest, royalties, or other incomes, etc.

In particular, for those enterprises that intend to make new investments in Italy for a value not lower than EUR 15 million, a ’ruling on new investments’ could be filed, disclosing tax treatment of the investment and all related extraordinary transactions. The tax authorities will be bound not to issue any deed inconsistent with the answers given.

The tax authorities’ answer must be notified within 120 days. The deadline can be extended for an additional 90 days if the tax authorities ask for new additional information.

Tax audit process

For larger companies having a yearly turnover exceeding specific thresholds (that are in the process of being progressively decreased to EUR 100 million), administrative checks on tax returns may be carried out within the year following that in which the tax return has been filed.

Tax audits can take place at the taxpayer’s premises as well as in the tax authorities’ offices. The statute of limitations provides that tax auditors can stay at a taxpayer’s premises for not longer than 60 working days (30 days ordinary term plus 30 days of extension). At the end of this period, the audit must come to an end. Tax auditors must take note of the observations and requests made by the taxpayer. At the end of their audit, the tax auditors must draw up a tax audit report whereby the outcome of the audit activity must be detailed and the findings (if any) must be illustrated and motivated. 

Should the taxpayer accept all the challenges raised by the tax auditors, it may take advantage of the application of reduced penalties. The reduced penalties are equal to 1/6 of the applied penalties.

In case the taxpayer decides not to accept the challenges by the tax auditors, a copy of the report has to be filed with the tax office.

The tax office receiving the tax audit report examines the findings reported by the tax auditors and starts the assessment procedure, which may lead to the issuing of a tax assessment notice bearing the request for payment of higher taxes and/or penalties.

Tax controversy and dispute resolutions

Should the taxpayer accept all of the challenges raised by the tax authorities' tax assessment notice, it may take advantage of the application of reduced penalties. The reduced penalties are equal to 1/3 of the applied penalties.

Should the taxpayer decide not to accept the challenges by the tax authorities, a settlement procedure can be initiated. The favourable outcome of the settlement procedure brings forth the agreed-upon reduction of challenged taxes and the reduction of penalties. The reduced penalties are equal to 1/3 of the applied penalties.

In case no settlement is either achieved or requested for, the taxpayer may start a tax dispute before the Court. The judicial proceedings are structured in three tiers:

• Tax Court in first instance.
• Tax Court in second instance.
• Supreme Court of Cassation.

The settlement can be reached also during the judicial proceeding. The favourable outcome of the judicial settlement procedure brings forth the agreed-upon reduction of challenged taxes and the reduction of penalties. The reduced penalties are equal to 40% if the settlement is reached during the first instance, 50% if the settlement is reached during the second instance, and 60% if the settlement is reached during the Supreme Court instance.

Statute of limitations

The Italian tax authorities are entitled to make an assessment in relation to corporate taxes (IRES and IRAP), VAT, and WHT returns up to:

• the end of the fifth calendar year following the year in which the tax return was filed (previously up to the end of the fourth calendar year), or
• the end of the seventh calendar year following the year in which the tax return would have been filed, for an omitted return (previously up to the end of the fifth calendar year).

Due to the COVID-19 emergency, the deadlines for tax periods 2016, 2017, 2018, and 2019 will be extended by 85 days.

Different rules were applicable until FY 2015.

The possibility to file an integrative tax return in favour of taxpayers within the deadlines of tax assessment has been introduced (e.g. FY 2018 tax return is amendable in favour of the taxpayer until FY 2024, FY 2019 tax return is amendable in favour of the taxpayer until FY 2025).

Topics of focus for tax authorities

Extraordinary transactions (such as mergers, de-mergers, etc.) continue to be a topic of focus for tax authorities due to the potential applicability of tax anti-abuse rules.

As a response to recent cases of carousel-frauds on VAT, cross-border transactions are being more heavily scrutinised.

Over the last few years, we experienced an increasing focus by the tax authorities on transfer pricing and PE-related issues.

The beneficial ownership condition is very carefully scrutinised in case of payments where a nil or reduced WHT is applied based on EU Directive or applicable DTT, in particular when the ultimate owner of the group is non-EU.

The tax authorities will also focus on intercepting the improper utilisation of contributions and tax credits intended to cope with the economic crisis caused by the epidemiological emergency from COVID-19.

Tax Control Framework (TCF) and cooperative compliance regime

In order to promote cooperation between the tax administration and taxpayers, a cooperative compliance regime (so-called 'Adempimento Collaborativo') has been introduced into the domestic tax system by means of Legislative Decree no. 128 of 5 August 2015.

With the approval of the Law no. 111/2023 for the reform of the tax system and with the enactment of the Legislative Decrees no. 221/2023 and no. 108/2024, additional certainty is granted to companies that intend to invest in transparency with the tax authorities under the cooperative compliance regime. In particular:

• Assessment terms are significantly reduced.
• Rewards are enhanced on the level of penalties for taxpayers who apply the regime, up to the disapplication of both the administrative penalties and the criminal penalties.

In detail, the following new changes have been introduced:

• A progressive reduction of the access threshold:
  • EUR 750 million (2024-2025).
  • EUR 500 million (2026-2027).
  • EUR 100 million (from 2028).
• An extension to taxpayers who belong to the same tax consolidation group, provided that at least one subject participating in group taxation meets the size requirements and that the group adopts an integrated system of detection, measurement, management, and certified tax risk control.
• The strengthening of the reward effects, such as:
  • For significant tax risks communicated in a timely and exhaustive manner before the submission of the return or before the tax deadlines:
    • Exclusion of administrative penalties and no liability for the crime of unfaithful return.
    • Reduction of assessment deadlines by two years with certified TCF.
    • Further reduction of one year in the assessment deadlines in case of obtaining tax certification (so-called ’strong‘ conformity mark).
  • Reduction of administrative penalties to 50% for tax risks included in the risk control matrix.
  • Exclusion of administrative penalties applied as well as no liability for the crime of unfaithful return for risks connected to conduct in tax periods prior to entry into the regime if communicated within 120 days of the admission provision.

To enjoy the above benefits, a TCF certification, issued by qualified professionals enrolled in the register of lawyers or chartered accountants and accounting experts, has been introduced.

For medium-sized taxpayers who do not meet the requirements to apply the regime at hand, but have implemented an effective integrated TCF by giving specific communication to the tax authorities (irrevocable two-year option) and communicated, via tax ruling, the tax risks in a preventive manner before submitting the return or before the tax deadlines, the following benefits are provided:

• A reduction of 1/3 of the administrative penalties.
• Non-punishment for the crime of unfaithful tax returns.

A Code of Conduct is introduced to define and regulate mutual commitments between the tax authorities and taxpayers.

Joining the cooperative compliance regime is also the first step for taking part in the International Compliance Assurance Programme (ICAP).

ICAP is a voluntary program for a multilateral co-operative risk assessment and assurance process, which gives comfort and assurance where tax administrations participating in an MNE’s risk assessment consider a covered risk to be low risk.

Tax offences and the entity’s criminal liability: The rules as per Decree 231/2001

With the Fiscal Decree linked to the Budget Act (Decree Law no. 123, converted into Law no. 157 of 2019 on 'Urgent provisions on tax matters and urgent matters that cannot be postponed'), a significant part of the tax crimes, attributable to tax fraud, entered the catalogue of offences for the liability of entities for administrative offences, governed by Legislative Decree no. 231 of 2001 (Decree 231/2001).

Article 39(2) of the fiscal Decree has amended decree 231/2001 by inserting under article 25-quinquiesdecies (sources of administrative criminal liability) the following tax fraud crimes, which are included in Legislative Decree no. 74 of 2000 (Decree 74/2000):

• Fraudulent tax returns, through the use of invoices or other documents for non-existent transactions (Article 2(1) and (2), Decree 74/2000).
• Fraudulent tax returns, by means of other artifices (Article 3, Decree 74/2000).
• Issuing invoices or other documents for non-existent transactions (Article 8(1) and (2a), Decree 74/2000).
• Concealing or destroying accounting documents (Article 10, Decree 74/2000).
• Fraudulent deduction from the payment of taxes (Article 11, Decree 74/2000).

Further legislative changes occurred as a result of Legislative Decree no. 75 of 2020 (implementing Directive (EU) 2017/1371, better known as the 'PIF Directive'), which expanded the category of tax offences provided for in Article 25 quinquiesdecies of Legislative Decree 231 of 2001 with the following types of offence:

• Unfaithful declaration (Article 4, Decree 74/2000).
• Omitted declaration (Article 5, Decree 74/2000).
• Undue compensation (Article 10c, Decree 74/2000).

The same Legislative Decree no. 75 of 2020 provides that the offences listed above are relevant to the administrative liability of the entity if they are committed as part of cross-border fraudulent schemes and for the purpose of evading VAT for a total amount of not less than EUR 10 million.

The last relevant amendment was made by Legislative Decree no. 156 of 4 October 2022.

Particularly, the amendment provides that if the conduct is carried out for the purpose of evading VAT in the context of cross-border fraudulent schemes, connected to the territory of at least one other member state of the European Union, from which overall damage equal to or exceeding EUR 10 million results or is likely to result (so far there are no differences), the offence provided for in Article 4 is punishable as an attempt. Apart from cases of complicity in the offence referred to in Article 8, the offences provided for in Articles 2 and 3 are punishable as attempted offences, when the same conditions set out in the first sentence are met.

It is therefore necessary to update the Organisation, Management, and Control Model (MOGC) to include the tax risks associated with the types of tax offences included in 'catalogue 231'. Procedures must be mapped in the MOGC in order to define roles, responsibilities, principles of conduct, operating procedures, as well as the criteria of conduct that individuals must uphold in order to prevent the commission of tax fraud offences.

The sanctions applicable to the entities, in relation to the commission of the offences, may be both pecuniary and interdictory. Pecuniary sanctions range from a minimum of 400 to a maximum of 500 quotas, with a possible increase of one third in the event of a significant profit obtained by the entity as a result of the commission of tax fraud. Considering the current value of the quotas, the maximum financial penalty applicable to the entity for a tax offence may reach up to EUR 1,032,667.

Interdictory sanctions with a considerable impact may also be imposed. Interdictory sanctions may even be applied as a precautionary measure, including a prohibition on contracting with the public administration and a prohibition on advertising goods or services, as well as confiscation and seizure of the profits accumulated from the tax offence.

Mandatory automatic exchange of information in the field of taxation in relation to reportable cross-border arrangements (the so-called 'DAC 6')

The EU 'DAC 6' Directive, adopted by the Council of the EU on 25 May 2018 and entered into force on 25 June 2018, introduces new rules at a European level regarding the mandatory automatic exchange of information in the tax sector.

In particular, DAC 6 requires intermediaries and taxpayers to promptly communicate to the tax authorities of the member state of tax residence, establishment, or in which they operate, the 'cross-border arrangements subject to the reporting obligation' ('Reportable Cross Border Arrangement' or RCBA), when certain conditions are met.

In this regard, from an objective point of view, two elements are relevant:

• the presence of a cross-border element and
• the presence of at least one of the hallmarks in the arrangement, so that it is considered to be 'subject to the reporting obligation' (such hallmarks are listed in the Annex IV of DAC 6).

Each person, in the role of an intermediary or a relevant taxpayer, with respect to DAC 6 can assume the obligation to report the arrangements that have an impact on its tax position or on its client’s taxation or on the correct application of Common Reporting Standard (CRS) and anti-money laundering (AML) procedures. As a result, DAC 6 requires the prompt interception of potential RCBAs and to proceed with their analysis and, if necessary, report to the revenue agency.

The reporting obligations were scheduled to enter into force as from 1 July 2020 and intermediaries and taxpayers would have 30 days to comply with the reporting obligations.

The tax authorities of the EU member states, on a quarterly basis, will exchange among themselves the information submitted by intermediaries and taxpayers in order to promptly intercept aggressive tax planning schemes and neutralise the distorting effects that they produce on the EU market.

In Italy, the implementation of DAC 6 rules is basically aligned with the EU minimum standard, with the main possible deviation linked to the hallmarks and the relevance for the application of the main benefit test, which considers the taxes due by a taxpayer with a link with Italy (residence, presence of a PE, income sourced in Italy, or economic activity carried out in Italy).