Prepared by Andrea Werner Beilin, Francesco Mariani and Ludovica Copia
The Italian Tax Authorities, with the Ruling no. 484/2022 (hereinafter also ”the Ruling”), provided important clarifications on the issuance and registration of sales and purchase invoices in the event of extraordinary transactions.
The case dealt with by Italian Tax Authorities concerned a demerger in which the demerged company did not keep separate VAT accountings in relation to the business unit or division transferred to the beneficiary company.
In the following paragraphs, we report the main clarifications provided by the Italian Tax Authorities regarding the invoicing and the related registration procedures.
With reference to the sales transactions, the Italian Tax Authorities confirmed the previous position adopted via the Resolution n. 183/E/1995 and the general principle according to which the criteria for attributing the rights and obligations to the demerged company rather than to the beneficiary company is the taxable event, according to art. 6, Presidential Decree no. 633/1972. In particular:
- if the taxable event takes place before the demerger, the invoice should be issued by the demerged company;
- if, on the other hand, the taxable event takes place after the demerger, it is up to the beneficiary company to issue the relevant invoices.
Finally, it is the beneficiary company that should issue credit notes related to invoices issued before the demerger, considering that the latter has succeeded to the rights and obligations of the demerged company.
Consequently, the beneficiary company is responsible to issue credit notes pursuant to article 26, Presidential Decree No. 633/1972, based on events that has occurred after the date on which the demerger becomes legally effective.
Purchase invoices received by the demerged company before the date of the demerger
For purchase invoices received by the demerged company before the date on which the demerger takes place, the obligations and rights relating thereto, including the exercise of the deduction of VAT, are in the hand of the demerged company.
However, if the demerged company has not registered the purchase invoice, the beneficiary company has the right to proceed with the annotation of the purchase invoice to exercise the VAT deduction, within the limits of the provisions in force.
In this respect, the Italian Tax Authorities clarified that it is irrelevant the fact that such purchases invoices are addressed to the demerged company.
Purchase invoices issued towards the demerged company prior to the date on which the demerger became legally effective, but received by the demerged company after such a date
Purchase invoices issued to the demerged company prior to the date on which the demerger became legally effective, but received by the demerged company after such a date, can be registered by the beneficiary company.
As in the preceding scenario, the beneficiary company is entitled to exercise the rights and should carry out the obligations related to such invoices.
Purchase invoices issued to the demerged company after the date on which the demerger became legally effective
According to the Italian Tax Authorities, invoices issued to the demerged company after the date on which the demerger became legally effective cannot be considered fully regular, since such invoices are headed (i.e. name and VAT number) to the demerged company instead of the beneficiary company.
The Ruling, therefore, provides for the regularisation procedure, pursuant to art. 6, paragraph 8, letter b), Legislative Decree no. 471/1997, which consists in the issuance by the beneficiary company, within the 30th day following the date of registration of the irregular invoice, of the so-called “spy self-invoice” through the Interchange Data System provided by the Italian tax authorities (using the specific code TD20).
In this respect, the Italian Tax Authorities clarifies that:
- the regularization can take place cumulatively for each supplier. In other words, the beneficiary company can issue a single self-invoice in respect of several purchase invoices received from the same supplier; and
- no penalties are imposed for invoices received prior to the clarifications made by this Ruling, assuming that the VAT mentioned in the invoices has been correctly settled and timely registered.
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