Edited by Davide Accorsi and Stefano Luigi Airaghi
With the response to query no. 115/2025, the Revenue Agency seems to answer this question affirmatively.
In the case presented, the applicant, despite having purchase invoices received in 2023, for which the tax had become payable and therefore deductible in the same period, failed to register them by April 2024 (i.e., the ordinary deadline for submitting the VAT return for the year 2023). Furthermore, the applicant did not exercise the right to deduct the related VAT.
In such circumstances, the applicant essentially asks whether it is possible to register the mentioned invoices after April 2024 but before submitting an amended return for the year 2023[1], with which to exercise the right to deduction. The applicant also asks for clarification on the penalties that may apply.
The Revenue Agency, citing among others the response to query no. 479/2023 and resolution no. 325/E/2002, believes that the applicant must definitively renounce the right to deduct the tax, as in this case, the elements of relevant and essential error[2] are not present, but rather a mere reconsideration of specific choices already made by the taxpayer in the declaration.
The Revenue Agency also considers the penalty provided for in Article 6, paragraph 1, of Legislative Decree no. 471/1997, applicable for purchase invoices not registered in a timely manner, regardless of the exercise of the right to deduction. The mentioned penalty, where the violation did not affect the correct settlement of the tax, can be applied in a fixed amount.
The response provided by the Revenue Agency has the merit of incidentally confirming the possibility of using the amended return in favor of the taxpayer to extend the terms within which to exercise the right to VAT deduction (provided that the invoices have been registered in a timely manner) even following the judgment of the Court of Justice of the European Union in case C-429/23[3].
On the other hand, the same response seems to give substantial importance to the timely registration of purchase invoices in order to exercise the right to deduction. This conclusion seems to be in contrast with what is established by the jurisprudence of the European Union (case C-332/15[4]) and Italian (Cass. no. 143/2022), as well as with the clarifications provided by the same tax administration with circular no. 328/1997.
In summary, the thesis of the cited judgments and practices is that the registration of invoices is a formal requirement and, therefore, cannot affect the deduction of the tax unless it occurs in the context of evasion or abuse (see, among others, paragraphs 43 to 53 of the judgment in case C-332/15, cited).
Given the above, although the Revenue Agency has not explicitly emphasized a change in direction compared to previous interpretations, in the opinion of the writer, this change is evident and, therefore, it is appropriate for taxpayers to consider adopting procedures for the registration of invoices and import accounting statements in line with this direction.
Finally, it is worth noting that the sanctioning treatment appears particularly severe, penalizing the taxpayer for the omitted exercise of a right if the deduction is not exercised. There remains doubt that, affecting the settlement of the tax, the penalty under Article 6, paragraph 1, of Legislative Decree no. 471/1997 should be applied proportionally in if taxpayer, after belatedly registering the invoice, uses the related VAT credit to offset the VAT payable or in compensation with other taxes or obtains a refund.
[1] To be sent by the deadline provided for by the combined provisions of Article 8, paragraph 6-bis, of Presidential Decree no. 322/1998 and Article 57, paragraph 1, of Presidential Decree no. 633/1972, or by December 31, 2029, in the case proposed by the applicant.
[2] The response to query no. 479/2023 had instead admitted the possibility of resorting to the institution of the amended return in a different case where, due to a mere error, the taxpayer entitled to the deduction right, despite having received and registered the purchase invoice, failed to exercise this right in a timely manner.
[3] See our newsalert on the point at the following link.
[4] Also referenced by the Revenue Agency in the response in question, but in support of its position. The Revenue Agency exclusively references paragraphs 31 to 34.
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For further information:
Contatta Luca Lavazza – Partner, PwC TLS Avvocati e Commercialisti
Contatta Davide Accorsi – Director, PwC TLS Avvocati e Commercialisti
Contatta Stefano Luigi Airaghi – Senior Manager, PwC TLS Avvocati e Commercialisti