Curated by the Tax Incentives & Grants and Tax Controversy & Dispute Resolution teams
With ruling no. 883/2025 of April 4, 2025, the Second-Degree Tax Justice Court (CGT) of Lombardy accepted the appeal filed by a software house recipient of recovery actions for alleged improper use of the tax credit for research and development activities, with reference to the tax years 2015–2017.
In this case, the Revenue Agency had contested the lack of the “novelty” requirement, deeming the projects lacking in actual scientific or technological advancement. The first-degree Tax Court of Milan had confirmed the Office’s thesis.
However, the appeal ruling overturned the outcome of the first judgment, acknowledging the right to the contested benefit based on the recognized novelty of the project carried out by the company, as evidenced by the documentation produced by the company itself, including, among other things, the technical certification referred to in Art. 23 of Decree-Law 73/2022.
“Novelty” requirement: the method matters, not just the content
In particular, the Court agreed with the argument provided by the company that aimed to enhance the content of the project “Big Data as a Service”, as it, while based on existing sources, presented elements of reorganization, critical and methodological selection attributable to a structured research activity.
In this regard, in fact, the Board specified that innovation, especially in the digital field, can also derive from the original combination of pre-existing knowledge, a position that sharply deviates from the formalistic approach adopted by the Agency.
According to the judgment, in fact, “the novelty does not lie in the contents addressed, but in the innovative methods of extraction, connection, and reorganization of those contents, according to a methodology that today we could attribute to the activity carried out by artificial intelligence”.
The decision, therefore, reaffirms the prevalence of the substantive element over the formal one, recognizing that: “The innovative nature of an investment project cannot be measured exclusively on the basis of actually achieving the final result, as the risk of failure is intrinsic.”
Technical certification: a key element in credit protection
In its reasoning, the Board also referred to the certification under Article 23 of D.L. 73/2022, produced by the applicant and issued by an independent certifier registered with the MIMIT.
With regard to this certification, the adjudicating body, while abstractly acknowledging its suitability to have binding effects on the Tax Administration, pursuant to paragraph 4 of the aforementioned article 23, in this instance excluded such effect, as a report of findings regarding alleged violations in the use of tax credits had already been issued, in accordance with paragraph 2 of the aforementioned article 23.
However, the ruling in question emphasized how this certification still represents an element of qualified technical assessment that the Tax Administration cannot ignore without a specific and thorough rebuttal and, therefore, contributes to the documentary framework that the adjudicating board may consider in forming its judgment.
This ruling represents a very important first case in which the Board has recognized the legal value of the technical certification issued by certifiers registered with the MIMIT Registry, even if such certification has been issued outside the procedure provided through the Ministry’s platform.
From this, it emerges, in conclusion, the opportunity for all companies that have accessed the tax credit – both for R&D activities available in the years 2015-19, and for R&D, technological innovation, design, and aesthetic conception activities starting from the year 2020 – to always support the technical documentation accompanying the subsidized projects with a certification issued pursuant to the aforementioned Article 23 of DL 73/2022.
This applies both to companies that have not yet received checks on the eligibility of such credits (also considering that the period of possible verification of such credits, 8 years subsequent to the actual use, it is also longer than the ordinary assessment period), inhibiting ab origine qualitative disputes regarding the credit itself, both for those companies that, following tax audits, have already received notices of dispute or assessment, with imposition of significant administrative penalties (i.e. 100% of the disputed credit) and also with criminal consequences, providing the taxpayer with technical arguments to use both in the adherence phase and should they be forced to litigate in court to have their credit entitlement and the correctness of their actions recognized.
To this end, it is noted that PwC can provide such support thanks to accredited professionals registered with the MIMIT certifiers list, authorized to issue technical reports pursuant to art. 23 of DL 73/2022, as well as to identify the best defense strategy in case of any disputes and to assist you in dealings with the Tax Administration or in court. For more information on our services or to request a preliminary analysis, you can contact us through our dedicated channels.
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