Prepared by Tommaso Tomaiuollo, Franco Boga and Giuseppe Fortunato
The Law Decree no. 76 of July 16, 2020, converted with amendments by Law no. 120 of September 11, 2020 (“Decreto Semplificazioni”) postponed from June 30, 2020 to December 31, 2020 the deadline for the waiver of the tax benefits provided by the so-called “Tremonti Ambiente” (article 6, para. 13-19, Law no. 388 od December 23, 2000) by the operators who wish to retain the right to benefit from the incentive tariffs provided by the Conto Energia III, Conto Energia IV and Conto Energia V.
In particular, article 36 of the Decree no. 124/2019 (“Decreto Fiscale”) provided the possibility to exercise, even in the case of pending litigation, the abovementioned waiver until June 30, 2020 establishing a sort of “amnesty” for the taxpayers who had benefited from both the tax incentives provided by the “Tremonti Ambiente” and the last three “Conti Energia”.
Subsequently, the Provision no. 114266/2020 of the Tax Authority determined the procedures in order to exercise the abovementioned waiver establishing that the taxpayer, in order to benefit from the possibility set out by article 36 of the Decreto Fiscale, should send a communication to the Tax Authority within June 30, 2020. It is worth noticing that the Tax Authority’s provision has been challenged in front of the Lazio Regional Administrative Court, which suspended the proceeding due to a pending regulation of jurisdiction (regolamento di giurisdizione) before the Sezioni Unite of the ”Corte di Cassazione” (Supreme Court) presented by the Gestore dei Servizi Energetici – GSE S.p.A. (“GSE”). As a matter of fact, the judges of the Lazio Regional Administrative Court stated that the regulation of jurisdiction precluded the examination of the proposed precautionary judicial request in relation to the alleged constitutional illegitimacy of article 36 of the Decreto Fiscale. However, recently, the State Council, section IV, with the ordinance no. 4349 of July 20, 2020 has provided to the Lazio Regional Administrative Court to rule on the precautionary judicial request since the pending regulation of jurisdiction does not preclude the administrative judge from taking a decision on the requested precautionary judicial request.
In this context, Article 56 of the Decreto Semplificazioni provides that the deadline for the communication that has to be sent to the Tax Authority in order to exercise the waiver is deferred to December 31, 2020. Literally the abovementioned article, provides only for the postponement of the deadline for the communication until December 31, 2020, but it would have limited application and reason to exist without the postponement of the deadline for the payment to the Tax Agency of the amount provided for by Article 36, para. 2 of the Decreto Fiscale. Consequently, in case of cumulation between the “Tremonti Ambiente” and the III, IV and V Conto Energia, the operators willing to maintain the right to benefit from the latter shall, within December 31, 2020:
- submit the Communication for the restitution of the Tremonti Ambiente, indicating the pending judgments concerning the recovery of the benefits not due in accordance with the prohibition of cumulation of the incentives together with the commitment to waive these judgements (Article 36, para. 3-4 Decreto Fiscale); and
- pay an amount determined by applying the pro tempore tax rate (Ires or Irpef) in force at the time to the decreasing variation made in the declaration relating to the tax deduction for environmental investments (Article 36, para. 2 Decreto Fiscale).
In conclusion, it is worth remembering that the cumulation of the “Tremonti Ambiente” with the incentive tariffs provided by the III Conto Energia, IV Conto Energia and V Conto Energia still represents a vexata quaestio, far from being resolved. In brief, the communication issued by GSE on November 22, 2017 provided the prohibition of cumulation between the “Tremonti Ambiente” and the III Conto Energia, IV Conto Energia and V Conto Energia. However, the Lazio Regional Administrative Court – with the rulings no. 6784/2019 and 6785/2019 – annulled the abovementioned communication (for further details please refer to the newsletter of June 11, 2019 available at the following link www.pwc-tls.it/it/publications/assets/docs/tls-newsalert-11062019.pdf). Moreover, the recent ruling no. 173 of January 24, 2020 of the Milan Regional Tax Commission supported the possibility to cumulate the benefits arising from the “Tremonti Ambienti” and the III Conto Energia, IV Conto Energia and V Conto Energia. Therefore, we recommend a careful and thoughtful evaluation of the appropriateness of exercising the waiver provided by article 36 of the Decreto Fiscale (also in consideration of the abovementioned pending judgements before the Lazio Regional Administrative Court and the Sezioni Unite of the ”Corte di Cassazione” (Supreme Court)).
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