Remission without agreement only for transfers to banks and insurance
Remission without agreement only for transfers to banks and insurance
According to an amendment approved in the Finance Committee of the Chamber, only for transfers to banks or insurance, the related Communication can be sent after 31 March 2023, with the «remission in bonis», even without an agreement already signed by this date. In other cases of assignment to third parties, however, the ordinary rules apply, therefore, to make use of the «remission in bonis» it is necessary that the contract of assignment is signed by 31 March 2023.
Ordinary rules
According to Circular No. 33/E/2022, the taxpayer must have kept a «conduct consistent with the exercise of the option, in particular, in the event that such exercise results from an agreement or from an invoice prior to the deadline for sending the communication». Thus, not only must the «invoice discount» have already been indicated on the supplier’s invoice issued in the year of the expense bearing (for example, in 2022, for communications to be sent by 31 March 2023)but also the agreement with the third party for the eventual assignment of the credit must be prior to the ordinary term of «deadline for sending the communication», which for 2022 was 31 March 2023 (for 2021 was 29 April 2022 or in some cases, 17 October 2022).
The «remission in bonis», in fact, is possible only if the lack of communication derives from a forgetfulness and not from a choice. In practice, it would not be possible to rethink. For example, it is denied for the application of the dry coupon, if the registration tax has already been paid (circular 20 December 2012, n. 47/E, paragraph 3) or for the incentives to unpaid workers of article 16 of Legislative Decree 147/2015 (circular 28 December 2020, n. 33/E); while it is allowed for options for fiscal consolidation (Articles 117 of the Tuir), for fiscal transparency (Articles 115 and 116 of the Tuir) or the option for the regime of new domiciles (Article 24-bis of the Tuir).
Derogation
Only for notifications of assignment of credit or «invoice discount», due on 31 March 2023, to be made to banks and insurance companies, concerning “expenses incurred in 2022”, and “remaining instalments not used of the deductions related to the expenses incurred in 2020 and 2021” (also for non super bonuses), the “beneficiary of the deduction” will be able to use the «remission in bonis», paying the 250 euro penalty and sending by 30 November 2023 the communication omitted on 31 March 2023, without having to comply with the typical condition of the institution of «remission in bonis» relating to «conduct consistent with the exercise of the option», which for these communications consists in having already signed with the transferee, before 31 March 2023, (“deadline for sending the communication”) the related «agreement» of assignment.
The derogation from this condition of «performing remission», according to which the «contract of assignment» can be «concluded» even after “the date of 31 March 2023”, may only concern the completed disposals “in favour of banks and financial intermediaries registered in the register provided for in Article 106 of the Consolidated Law on Banking and Credit Law, pursuant to Legislative Decree No. 385 of 1 September 1993, companies belonging to a banking group registered in the register referred to in Article 64 of the aforementioned single text of banking and credit laws, insurance companies authorised to operate in Italy pursuant to the code referred to in the legislative decree of 7 September 2005, n. 209” (so-called qualified subjects).
Non-application of the derogation
This derogation may not concern the «invoice discount» to the supplier or the trader or the first assignment of claims to persons other than qualified persons. For the «invoice discount», in fact, it is necessary to have issued the invoice in 2022, with the «discount» indicated, while for general third parties, it is necessary to sign the «contract of assignment» by the end of March 2023. In these cases, it is advisable to give certain date to the agreement, for example, by sending it by pec between the parties.
By Luca De Stefani
In-depth analysis of De Stefani Studio in the article by Luca De Stefani on Il Sole 24 Ore of 28 march 2023
