Edited by di Andrea Werner Beilin, Pier Francesco Berardinelli and Francesco Turri
As from September 1, 2024, in cases where the supplier fails to issue an invoice or issues an irregular invoice, the customer is no longer obliged to issued the self-invoice for regularization (so-called “autofattura denuncia” or “autofattura spia”), but will have to communicate it to the Italian tax authorities.
Indeed, art. 2 of Legislative Decree no. 87/2024 (so-called “Decreto Sanzioni”) has radically reformed the content of art. 6(8) of Legislative Decree no. 471/1997, which regulates the procedures to be followed by business customers who do not receive an invoice or who receive an irregular invoice.
In particular, the legislation in force until August 31, 2024 imposes an administrative penalty equal to 100% of VAT, with a minimum of 250 euros, on the customer who has purchased goods or services without an invoice having been issued within the legal terms or with an irregular invoice issued by the supplier.
However, this sanction does not apply if the customer regularizes the transaction by issuing a self-invoice and paying any VAT that may be due (i) within four months from the date on which the transaction was carried out in the case of omitted invoicing or (ii) within the 30th day following the registration of the invoice in the case of receipt of an irregular invoice.
Therefore, to avoid incurring the substantial penalty, the customer was required to pay any VAT that may be due, issue the self-invoice through the Interchange System (so-called “SdI”) and record this invoice in the purchase VAT ledger.
Pursuant to the new text of art. 6(8) of Legislative Decree no. 471/1997, applicable to violations committed as from September 1, 2024, the customer will instead only have to communicate the omission or irregularity to the Italian tax authorities within 90 days from the date on which the invoice should have been issued or from when the irregular invoice was issued.
This notification must be made by tools made available by the Italian tax authorities, which have not yet been identified.
In the event that the customer fails to transmit this communication within the prescribed deadline, an administrative penalty of 70% of VAT will be applied, with a minimum of 250 euros.
Therefore, the new procedure appears considerably simplified. In fact, the customer is only required to report the omission or irregularity to the tax authorities, without having to pay VAT as it used to happen in the past. Nevertheless, the application of substantial penalties beyond the 90-day deadline imposes a considerable monitoring and verification activity on the customer.
Finally, the new provision expressly excludes that the customer may be obliged to monitor and review the legal assessments made by the supplier with reference to the VAT exemptions or exclusions arising from a subjective requirement of the supplier that cannot be directly verified.
In this regard, the Explanatory report to Legislative Decree no. 87/2024 expresses the legislative will to conform to the orientation according to which the control of the supplier should be limited to the formal regularity of the invoice, without also extending to the correct fiscal qualification of the transaction (see Court of Cassation, judgments no. 37255/2022, 27669/2022, 23256/2018, 15303/2015, 1306/2019 and 26183/2014).
However, the provision only refers to the “subjective” requirements of the supplier, leaving room for interpretative doubts regarding the actual burdens to be borne by the customer. For example, the Italian tax authorities might deem the custom to be obliged to check for VAT rate errors, which often require in-depth analysis (e.g., supplies of food supplements or the construction field). Moreover, limiting the exclusion to cases that are not “directly verifiable” by the customer further increases uncertainty.
In conclusion, the procedure at hand has been substantially simplified, but careful monitoring of the timing of purchase invoices and their content remains necessary. In addition, clarifications regarding the communication tools and the type of checks required of customers appear necessary.
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