With the green light of the conversion law of Decree Law No. 11 of 2023, the restrictions on options for the sale of credits and for the discount on invoices from 17 February 2023 are definitive. There are many changes to the transitional norm that allows the sterilization of this block. Various rules of authentic interpretation have been introduced retroactively on some aspects debated in doctrine.
From 17 February 2023, the options of «invoice discount» or assignment of building credits (deriving from both the super bonus and other minor bonuses) are no longer allowed, except in these cases:
Super earthquake bonus purchases
Even if the notary deeds have been signed by 31 December 2022, the «super earthquake bonus purchases» is not among the hypotheses of excluding the stop to the sale of credits and to the «invoice discounts», provided for by Article 2, paragraph 1, of Decree-Law 16 February 2023, n. 11. Therefore, in these cases (except for the seismic crater and for the meteorological events of article 2, paragraph 3-bis, decree law 16 February 2023, n. 11, or for the interventions “included in plans for the recovery of the existing building and urban redevelopment” of article 2, paragraph 2, letter c) Decree-Law No. 11 of 16 February 2023), remain out of the options all the rogiti stipulated in 2022, for which the relative Communication of option to the Revenue has not been sent before 17 February 2023.
There is no trace, in fact, in article 2, paragraph 2, of the decree law 16 February 2023, n. 11 (which deals with the super bonus), the facilitation of the «super earthquake bonus purchases» (article 16, paragraph 1-septies, of the decree-law 4 June 2013, n. 63)unless the norm wants it to fall within the case of demolitions and reconstructions (letter c). But this last hypothesis has not been taken into consideration during the first application of article 119, paragraph 8-ter, decree law 34/2020, relating to the extensions of the super bonus, therefore, it is not possible to use it now.
Moreover, the fact that the norm of the «super earthquake bonus purchases» (Article 16, paragraph 1-septies, of Decree-Law 4 June 2013, n. 63) is indicated in the following article 2, paragraph 3, of Decree-Law 16 February 2023, n. 11, does not solve the problem, because this paragraph is addressed only to «options relating to expenses incurred for interventions other than those referred to in Article 119 of the aforementioned Decree-Law No. 34 of 2020».
Ordinary cila or another request for a building permit before 1 year. June 2021
Last big excluded of the sterilization of the tightening of the block of the options of cession of the credit or «discount in invoice» is the case of who does not have to carry out demolition and reconstruction of buildings (for which it is sufficient “the application for the acquisition of the qualification”) and before the 1st June 2021 submitted an ordinary Cila or another request for a building permit and then, following the Anci Notebook of 28 July 2021 continued «with the procedure already in place», without presenting a new «Cila-superbonus». Article 2, paragraph 2 of Decree-Law 16 February 2023, n. 11, unfortunately, does not now consider this case among those excluded from the strict. Moreover, this problem was also present in Article 1, paragraph 894 of Law 29 December 2022, n. 197, which lists the cases in which the super bonus can remain at 110% (and not 90%) in 2023, for condoms, the unique owners of buildings with units from 2 to 4 and non-profit organizations, Odv and Aps (outside the “interventions involving the demolition and reconstruction of buildings”).
It is hoped that all these issues will be changed during the conversion of the decree.
Considering that Article 1, paragraph 894, of Law 29 December 2022, No. 197, provided for the possibility of avoiding the reduction of the super bonus measure from 110% to 90% in 2023 for condominiums and sole owners who had submitted before specific dates the Cilas (or the request for “the acquisition of the qualification”, for demolition and reconstruction), Article 2-bis of Decree-Law No. 11 of 16 February 2023 (introduced by its conversion law) provided, “for the purposes of application” of this provision, that the same is interpreted «in the sense that the presentation of a project in variant to the CILA or to the different qualification required by reason of the type of building intervention to be performed, is not relevant for the purposes of compliance with the terms provided». Moreover, with regard to the interventions on the «common parts of condominium ownership, it does not note, for the same purposes, the possible new shareholders’ meeting resolution approving the aforementioned variant».
The same interpretative rule also applies in cases of presentation of a variant to a Cilas or, for demolitions and reconstructions, to a «request for the acquisition of the enabling title», submitted before 17 February 2023, for the purpose of the exclusion from the block of the cessions and the «discounts in invoice», previewed from the decree law 11/2023.
According to the authentic interpretation of Article 2-ter of Decree-Law No. 11 of 16 February 2023, the taxpayer is allowed to use the institution of «remission in bonis» (Article 2, paragraph 1, of Decree-Law No. 16 of 2 March 2012), also relatively «to the obligation to submit in the terms» the certification of “effectiveness of interventions for the reduction of seismic risk” (Annex B), for the purposes of the ordinary bonus earthquake (Article 16, paragraphs 1-quater, 1-quinquies and 1-septies, of Decree Law No. 63 of 2013) and the bonus super earthquake (article 119, paragraph 4, of decree law n. 34 of 2020).
To this end, the first useful declaration, within which it is necessary to file Annex B in SUE, is «the first tax return in which the right to benefit from the deduction of the first constant part of the benefit must be exercised». In case of “exercise of one of the options” of cession of the credit or discount in invoice, instead, “the remission in bonis of the taxpayer must happen before the presentation of the communication of option”.
The Law of Conversion of Decree-Law No. 11 of 16 February 2023 extended the 110% super bonus for villas and terraced houses from 31 March 2023 to 30 September 2023. In particular, Article 119, paragraph 8-bis of DL 34/2020 allows to extend the expiry of the super bonus of 110% from 30 June 2022 to 30 September 2023 for natural persons, who carry out interventions on villas or terraced houses, granting these subjects to benefit from the super bonus of 110%, not only for transfers made from 1 July 2020 to 30 June 2022, but «also» for payments made from 1 July 2022 to 30 September 2023, «provided that on 30 September 2022» were «works were carried out for at least» 30% of the «total intervention» (based on the works carried out and regardless of payments), “in whose count” «may» (therefore, not «must») be “also included unpaid works” with the super bonus of 110 percent.
Only for expenses incurred in 2022, subsidized with the 110% super bonus, «the deduction can be divided, at the option of the taxpayer, into ten equal annual instalments from the 2023 tax period» (article 119, paragraph 8-quinquies, decree law May 19, 2020, n. 34, after the conversion into law of Decree law February 16, 2023, n. 11). This option is irrevocable and must be “exercised in the tax return for the 2023 tax period”, therefore, in the Income 2024 or 730 2024 model, relating to 2023. The option is only possible if the deduction of the first instalment of four in the reporting models has not started.
Article 2-ter of Decree-Law No. 11 of 16 February 2023, introduced by its conversion law, provided for an authentic interpretation rule (therefore, retroactive) which claims that «For the purposes of such deductibility, the indication of these expenses in the metric calculation and in the credits of appropriation of the expenditures by qualified technicians is a mere faculty and not an obligation».
According to the rule of authentic interpretation (therefore, retroactive) introduced by Article 2-ter of Decree-Law No. 11 of 16 February 2023 (introduced by its conversion law), “the limit of 516,000 euros” is «calculated on the basis of each individual contract and subcontract contract».
It is possible to offset in F24 building credits deriving from disposals or «invoice rebates» also with debts «of different tax authorities», such as, for example, the INPS.
Article 2-quater of Decree-Law No. 11 of 16 February 2023 (introduced by the relevant conversion law and also in line with the practice of Entering, Resolution 452/E/2008, and Assonime, case of 17 February 2023, No. 3) contains a rule of «authentic interpretation» (therefore, with retroactive effect) of Article 17, paragraph 1, of Legislative Decree No. 241 of 9 July 1997, to challenge the interpretation of certain Civil Courts, Labour Section (see Court Milan n. 2207/2021; Court Milan n. 625/2022; Court Brescia 1251/2022), aimed at prohibiting horizontal compensation in F24 between social security debts and tax claims (see Il Sole 24 Ore of 16 March 2023).
According to the authentic interpretation, Article 17, paragraph 1, first sentence, of Legislative Decree No. 241 of 9 July 1997, is interpreted as meaning that the compensation provided for by this rule, «In compliance with the provisions in force, it may also take place between debts and receivables, including those» generated by the disposal of building credits or by the «invoice rebate», provided for by Article 121 of Decree-Law No. 34 of 19 May 2020, «in relation to different tax authorities».
Only for transfers to banks or insurance companies, the relevant Communication can be sent after 31 March 2023, with the «remission in bonis», even without an agreement already signed by this date (Article 2-quinquies of Decree-Law No. 11 of 16 February 2023, introduced by its conversion law). In other cases of assignment to third parties, however, the ordinary rules apply, therefore, to make use of the «remission in bonis» it was necessary to sign the contract of assignment by 31 March 2023.
“Banks, financial intermediaries registered in the register provided for in Article 106” of the Consolidated Law on Banking and “companies belonging to a banking group registered in Article 64” of the UPC or “insurance companies authorized to operate in Italy pursuant to the Private Insurance Code” (Legislative Decree 7 September 2005, n. 209), «assignee of tax credits referred to» in Article 121, paragraph 2, Decree-Law 19 May 2020, n. 34, pursuant to article 119 of decree-law n. 34 of 2020, “in relation to operations whose expenditure has been incurred up to 31 December 2022, these tax credits may be used, in whole or in part, for the purpose of subscribing to issues of multi-year Treasury bills”, subject to the following conditions:
In any case, the first use of these credits for Btp purchases “can be made in relation to ordinary issues made from 1 January 2028”. With “appropriate measures of a directional nature of the Revenue Agency and the Ministry of Economy and Finance, after consulting the Bank of Italy, the methods of application are identified” of this provision (article 121, paragraph 1-sexies, decree law 19 May 2020, n. 34, after the conversion into law of Decree law 16 February 2023, n. 11).
Luca De Stefani
In-depth analysis by Studio De Stefani at the article by Luca De Stefani on La Settimana Fiscale of 26 April 2023
