Option for 10 annual instalments for credits transferred by 31 March 2023

10 May 2023

Articolo•The sun 24 hours•Tax Week•Option for 10 annual instalments for credits transferred by 31 March 2023

Green light from 2 May 2023 to the 10-year option of «the remaining share of each annual instalment of the tax credits» acquired through a «invoice discount» or a credit assignment, communicated to the Revenue Agency before 31 March 2023, provided that it is an amount of the annual installment that has not yet been used as compensation in F24 and covers the super bonus, the 75% deduction for the elimination of architectural barriers or the ordinary bonus earthquake. The implementing procedures, in fact, are contained in the provision of Revenue of 18 April 2023, n. 132123.

According to Article 121, paragraph 3, second period, of Decree Law No. 34/2020, the tax credit deriving from building bonuses (not only 110%), acquired by the transferee or supplier (through the discount on the invoice) must be mandatory «used with the same breakdown into annual instalments with which the deduction would be used» by the taxpayer (original beneficiary of the deduction), for example, for the super bonus in 4 years (ie in 5 years for the expenses incurred from 1 July 2020 to 31 December 2021) and for the deduction of 75% for the elimination of architectural barriers and for the ordinary bonus earthquake in 5 years.

Thanks to article 9, paragraph 4, first period, decree law 18 November 2022, n. 176 (decree quater aid), in derogation to this rule of article 121, paragraph 3, second period, of decree law n. 34/2020 (the decree Aid quater speaks erroneously of derogation from the «third period» of paragraph 3), the tax credits relating to the super bonus, the 75% deduction for the elimination of architectural barriers and the ordinary bonus earthquake (last two deductions for which it is possible to make ‘option for the ten-year breakdown, introduced by Article 2, paragraph 3-quinquies of Decree-Law No. 11 of February 16, 2023, following the Conversion Law April 11, 2023, n. 38), “resulting from the communication of assignment or «discount on invoice» sent to the Revenue Agency by 31 March 2023″ (extension from 31 October 2022 to 31 March 2023, introduced by Article 2, paragraph 3-quinquies of Decree-Law 16 February 2023, No. 11, following the Conversion Law 11 April 2023, No. 38) and «not yet used» completely in compensation in F24 may «be used in 10 equal annual instalments, instead of the original instalment provided for the above credits, after sending a communication to the Revenue Agency by the supplier or the assignee, to be made electronically», also using” the authorized intermediaries. The above option for the distribution in 10 years can also be made by the suppliers who have acquired the credit through the discount on the invoice.

In any case, even if the breakdown is chosen in 10 years, the decree Aid quater provides that «the share of tax credit not used in the year» cannot “be used in subsequent years and” can not “be claimed for reimbursement”by analogy with the provisions of Article 121, paragraph 3, third period, of Decree-Law No. 34/2020. Therefore, the derogation is only to the second period of paragraph 3.

Option for the «residual share of each annual instalment of tax credits»

The implementing measure of 18 April 2023, n. 132123, clarified that the «residual share of each annual instalment of the tax credits», not yet used as compensation in F24, may be the subject of this 10-year option.

Even more options for the same installment

It is possible that the option has for object «even just … a part of the loan instalment at the moment available and with subsequent communications» may be installments «also in several solutions, the remaining part of the instalment» (Article 3 of the Revenue Provision of 18 April 2023, n. 132123).

For example, for a 2023 installment of bonus earthquake of 10,000 euros, the taxpayer, who assumes to have a fiscal capacity in 2023 of 6,000 euros per year, may decide to communicate the option for the ten-year breakdown only for the 4,000 euros that he plans not to compensate. If, then, he realizes that he is not able to use the whole 6,000 euros, he can decide to send another option for the ten-year distribution for another 2,000 euros, provided he has not already compensated them. Therefore, as suggested in the reasons of the provision of the Revenue of 18 April 2023, n. 132123, the taxpayer can «wait until the end of 2023 to count the remaining claims not countervailable and inform the Agency to divide them over the next ten years».

The installment subject to the ten-year option may also have been “acquired as a result of credit disposals after the first option” of credit assignment or invoice discount.

For example, for the subsidised expenses with the super bonus incurred from 1 July 2020 to 31 December 2020, the beneficiary, after deducting the first instalment of 5 in 2020, may have communicated the option to dispose of the “remaining instalments” not used (4 of 5) on 29 April 2022 or, after deducting also the second instalment of 5 in 2021, could have communicated the option of disposal of the “remaining instalments” not used (3 of 5) by 31 March 2023. The new assignee can choose to share in 10 years even just one of these instalments that has acquired. In addition, it may decide to offset part of the annual instalment and to make several options for the 10-year breakdown of the «residual share of each annual instalment of tax credits».

The option for the ten-year breakdown is irrevocable and “may be made for the remaining part of the instalments of the related credits”:

the “2022 and following years, for claims arising from the communication of options for the first assignment or the invoice discount sent to the Revenue Agency until 31 October 2022, relating to interventions” facilitated with the super bonus;
the “years 2023 and following, for claims arising from communications sent to the Revenue Agency”:

“from 1 November 2022 to 31 March 2023, relating to interventions” facilitated with the super bonus;
“until 31 March 2023, relating to interventions” facilitated by the deduction of 75% for the elimination of architectural barriers and the ordinary bonus earthquake (Article 2 of the Revenue Bill of 18 April 2023 n. 132123).

Only in F24, no carry-over and no refund

Once the «residual share» of an «annual instalment» is divided into 10 new annual instalments, «each new annual instalment resulting from the breakdown» can be “used exclusively as compensation” in F24, “from 1 January to 31 December of the relevant reference year”, using its new tribute codes.

The new 10 “equal annual instalments” shall run «from the year following the reference year of the original instalment» (Article 2 of the Revenue Provision of 18 April 2023, No. 132123), therefore, the use in F24 of the 10 instalments starts only from the following year compared to that of the original installment. For example, for an original 2022 installment (for example, the first installment of 5 of the super bonus for expenses incurred in 2021), the new 10 annual instalments can be used in F24 only from 2023. For example, if two annuities have already been used for a credit, this extension allows in fact to reach a total of 12 years (see Il Sole 24 Ore of 19 April 2023).

As in the case of the original allocation of credits before the ten-year allocation option, even for the 10 new annual instalments, the “share of the tax credit not used in the year cannot be used in subsequent years or required for reimbursement”.

The new instalments of the tax credits resulting from the 10-year breakdown “cannot be transferred to other entities” or further allocated (Article 2 of the Revenue Order of 18 April 2023, n. 132123).

Communication to the Revenue Agency

For the purposes of the 10-year breakdown of the «residual share of each annual instalment of the tax credits», the supplier or assignee responsible for the claims shall notify the Revenue Agency “the type of credit, the annual instalment to be distributed over the next ten years and the amount thereof”. As mentioned above, the communication may refer «even if only a part of the credit instalment at the moment available and with subsequent communications can be instalments, even in several solutions, the remaining part of the instalment» (Article 3 of the Revenue Measure of 18 April 2023, n. 132123).

The Communication of the ten-year option can be sent from the reserved area of the website of the Revenue Agency, called «Credit Transfer Platform», “directly by the supplier or the transferee holding the credits, as from 2 May 2023”.

From 3 July 2023 onwards, the communication may be sent, through the same service, “also using an authorized intermediary (Article 3, paragraph 3, dpr 22 July 1998, n. 322), with “delegation to the consultation of the tax drawer of the holder of the claims” (measure of 29 July 2013, n. 92558). In this case, the credit holder is “notified by certified e-mail to the address in the National Index of PEC addresses of companies and professionals (INI-PEC) established at the Ministry of Enterprises and Made in Italy”.

The communication is immediately effective and cannot be corrected or cancelled (Article 3 of the Revenue Provision of 18 April 2023, n. 132123).

Monitoring of the evolution of compensation

Regarding these operations, the Revenue will carry out “a monitoring of the course of the compensations, in order to verify the relative impact on the fiscal balances” and the possible “Adoption by the Ministry of Economy and Finance of the measures provided for under Article 17, paragraphs 12-bis, 12-ter and 12-quater of Law No. 196 of 2009” (Article 9, paragraph 4, of Decree-Law 18 November 2022, n. 176, Decree Aid-quater). For example, “if deviations are about to occur” of the “charges arising from laws indicating expenditure forecasts”, the Minister of the Economy and Finance may provide, “for the current year, for the reduction of appropriations” estimated (paragraph 12-bis). For subsequent years, it is possible to provide for “corrective measures of increased expenditure” (paragraph 12-quater). Indeed, if the MEF finds that the implementation of the rule is “detrimental to the achievement of public finance objectives”, it can take the consequent legislative initiatives in a timely manner in order to ensure compliance with Article 81 of the Constitution (balance between revenue and expenditure), therefore, can also go so far as to block or suspend compensation (see Il Sole 24 Ore of 23 November 2022).

The preferential rule is appreciable, even if it would have been preferable to allow to carry forward the tax credits that cannot be compensated in the year of distribution of the same (5 years until 2021 and 4 years from 2022), for the so-called «incapienza» of the F24 (see Il Sole 24 Ore of 15 July 2022). This solution, in fact, would make it possible to eliminate the risk of losing any credit surplus, in years when the annual share is higher than the amounts of debt countervailable in F24.

Luca De Stefani

In-deth analysis of Studio De Stefani in the article by Luca De Stefani on La Settimana Fiscale of 03 may 2023.

Option for 10 annual instalments for credits transferred by 31 March 2023

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