Edited by Alessia Lippi and Francesco Turri
On October 3, 2024, the Italian tax authorities published Law Principle no. 3/2024 in order to clarify the perimeter of application of the concepts of ‘platform’ and ‘vendor’ referred to in Legislative Decree no. 32/2023, which implemented Directive no. 514/2021 (the so-called ‘DAC7’) in Italy.
When it comes to ‘DAC7’, reference is made first and foremost to EU Directive no. 514/2021 (but, in a broader sense, also to national legislation) that regulates the procedures for the automatic exchange of information by operators of digital platforms, as part of the broader programme of cooperation between EU tax authorities aimed at combating tax evasion with reference to online activities (the acronym ‘DAC’ means, in fact, ‘Directive on Administrative Cooperation’).
The DAC7 aims, in particular, to contrast tax fraud, evasion and abuse facilitated by the rapid digitalisation of the economy. This Directive aims to ensure, through the exchange of information concerning entities that make use of digital platforms to carry out certain specifically identified activities, that income generated through such platforms is properly identified and reported to the relevant tax authorities.
In summary, the automatic exchange introduced by the DAC7 requires platform operators (with certain cases of exclusion and exemption) to disclose information related to the performance of the activities of renting real estate, providing personal services, selling goods and renting any means of transport for the purpose of receiving a consideration, in relation to sellers residing in Italy or in another Member State of the European Union or providing rental services of real estate located in Italy or in another Member State.
However, both data relating to large accommodation providers in the hotel sector (i.e., those with more than two thousand ‘relevant’ activities), for which the tax authorities have other data flows, and those relating to small advertisers (i.e., sellers of goods for which the platform operator has facilitated less than thirty transactions and the total amount of the relevant consideration paid or credited does not exceed two thousand euro in the year) fall outside the reporting obligation.
In the opinion of the Italian tax authorities, the communication is due in relation to all sellers carrying out ‘relevant activities’ through a platform, regardless of the cross-border nature of the activities carried out.
Starting with transactions carried out from January 1, 2023, Legislative Decree no. 32/2023 requires digital platforms to acquire and share certain relevant data of sellers with the tax authorities. Communications are made telematically, by means of an .XML file, through the portal of the Italian tax authorities, through Entratel, Fisconline or an authorized intermediary.
In general, the communications shall be made by January 31 of the year following the relevant one (e.g., the relevant data of the year 2024 shall be sent by January 31, 2025). The transmitted files will be processed by the Italian tax authorities in order to collect the information and send it to the relevant tax authorities of the Member States of the European Union within the two months following the end of the reporting period to which it relates.
That being said, with the Law Principle at hand, the Italian tax authorities has clarified that a website that allows sellers to sell their goods to other users falls within the definition of ‘platform’, even when (i) the sale is carried out by the platform in its own name and on behalf of the sellers, pursuant to a sales commission agreement, or when (ii) there is no direct contact between the sellers and the buyers. Therefore, any platform that allows a seller to sell goods to other users, even indirectly, appears to fall within the definition of ‘platform’ set forth in Article 2(1)(a) of Legislative Decree no. 32/2023.
Moreover, according to the Italian tax authorities’ opinion, the definition of ‘seller’ also includes those sellers who have not registered with the platform by creating a specific account, but who have entered into a contractual relationship with the platform operator.
With such a Law Principle, the Italian tax authorities have provided an extensive interpretation of the concepts of ‘platform’ and ‘seller,’ consistent with the ‘Model Rules for Reporting by Platform Operators with respect to Sellers in the Sharing and Gig Economy,’ published by the OECD on July 3, 2020.
In light of this expansive interpretation, digital platforms that offer sellers the opportunity to engage in ‘relevant activities’ will need to monitor even more closely their relationships with those who use this service and collect the necessary information from them to fulfill their reporting obligation.
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