"NEWS October 6, 2016-2017 as the single no blacklist monitoring costs"

Posted by on Oct 6, 2016

The 2016 marks a strong evolution in the relationship between national economic operators and entities located in tax havens; recently the Agency intervened on the topic by posting circular No. 39/E/2016. This paper is dedicated to summarize the current situation by 2016, referring to a previous article the credits (and clarification of the tax authority) concerning the fiscal year 2015 declared recently transmitted.

Blacklist 2016

Think you can sum up the story by saying that by 2016 there is no longer any problem working with a subject blacklist, at least as regards the deduction of costs incurred in connection with business relations entertained with such subjects: the costs relating to supplies of goods and services, regardless of whether the counterparty is enterprise or professional, from 2016 become entirely deductible. Nay, rather, become deductible as an expense that is incurred in respect of a foreign national or not operator back list. From this point of view, will become fully equivalent to purchase goods or services from a supplier Italian, French or Swiss.

It is implied that this does not mean that remind the deduction is always ensured, but rather must be comply with the tax rules which govern ordinary places which includes the formation of business income, which inherently, competence, assurance and objective while improving determinability. But everyone will agree about the fact that this is completely obvious.

Through the repeal of paragraphs 10 to 12-bis of article 110 TUIR is repealed the discipline concerning the limitations of operational costs in fact only blacklist, making for an exercise (2015) the major innovations that are made on the subject by Legislative Decree. 147/2015, which also had significantly lessened the consequences in terms of deductibility of such costs. Consequently assumes relevance the finding of sorts to privileged taxation contained in the Ministerial Decree approved on January 23, 2002 and subsequent amendments.

The Agency highlights the fact that a discipline related to that repealed shall continue to apply: for costs incurred in respect of a foreign operator, residing in a country considered black list based on previous legislation, and belonging to the same corporate group of resident in Italy, continue to apply the rules on transfer pricing. Regulatory interventions in the comment did not, in fact, introduced changes to paragraphs 7 and 9 of article 110 of the tax code.

Upon removal of the limitations on the deduction of costs the blacklist was also cancelled its obligation to separate indication within the declarative model (under RF this manifested itself through a double variation, increasing and decreasing); from Only 2017 we expect this request is no longer present. Consequently, precise circular No. 39/E/2016, should be regarded as implicitly deleted even the sanction for the failure indication in Declaration of such data, can be applied without the discipline of favor rei in connection with irregularities committed.

However, it should be recalled that paragraph 147 of law 208/2015 predicts that "by Decree of the Minister of economy and finance general criteria are established for the collection of information related to purchases of goods and services received by entities established outside the territory of the State, which are necessary to ensure an adequate contrast Presidium international evasion. By decision of the Director of the IRS defines the technical modalities for the application of this paragraph and is the simultaneous elimination of any duplication of already existing obligations. "

Currently the monitoring of relationships with subjects located in tax havens is entrusted to the communication made by D.L. 40/2010, obliging taxable persons VAT to inform the Inland Revenue data on transactions (supplies of goods or services, made and received) against economic operators established, domiciled in privileged taxation States or territories (for this purpose it is necessary to refer to the lists approved by the decrees of May 4, 1999 and November 21, 2001).

This notification is now made if transactions exceed € 10,000 for each tax year, multipurpose and model, pursuant to the Decree. 175/2014, has annually (once monthly or quarterly, depending on the amount of the realized operations); in connection with the fiscal year 2015, presentation was been postponed to September 20, 2016 (decision of the Director of the Revenue Agency no. 45144 of March 25, 2016).

In all probability (but here it is necessary to await future developments) there will be an evolution of this instrument, right under the quoted paragraph 147, in order to implement the information previously collected through the unique model.

Fabio Garrini