Edited by Davide Accorsi, Stefano Luigi Airaghi, Beatrice Pelo
With ruling reply no. 288 of 7 November 2025, the Italian tax authorities provided clarifications regarding the exemption from the requirement to present a guarantee under Article 38-bis of Presidential Decree no. 633/1972 (hereinafter, the “VAT Decree”) in cases where VAT credit surpluses are offset within a group VAT settlement pursuant to Article 73, paragraph 3, of the VAT Decree.
In summary, the Italian tax authorities specified that, for the purposes of exemption from the obligation to provide a guarantee, the requirement of two years’ business activity must be verified at the time of submission of the annual VAT return, and not at the time of intragroup offsets.
Furthermore, even for intragroup VAT offsets, it is possible to submit a supplementary VAT return with the so called “visto di conformità”, in order to obtain exemption from the guarantee within the assessment deadlines, provided that no tax inspections are in progress.
If the supplementary return is submitted within 90 days of the ordinary deadline, only formal penalties ranging from €250 to €2,000 apply. After this period, in the absence of a guarantee and exemption, the penalty is 25% of the offset VAT (subject to further reductions if the violation is remedied within 90 days), plus statutory interest.
Finally, the Italian tax authorities clarified that, even in the case of intragroup offsets, certification of compliance with the conditions set out in paragraphs 3, 4, 5 and 6 of Article 38-bis of the VAT Decree must be provided by selecting the appropriate “flags” in panel VX4 of the VAT declaration, possibly even by means of a supplementary return.
The case concerns a Dutch company that registered for VAT in Italy as of 11 November 2022 in order to opt, from January 2023, for the group VAT settlement regime with its Italian subsidiary.
Before opening its own VAT position in Italy, the applicant had established, between April 2015 and February 2022, a fixed establishment which remained inactive and always filed zero VAT returns, except for the 2022 VAT return for the year 2021, which included the VAT relating to imports of goods made in Italy directly by the Dutch parent company.
During 2022, after closing its Italian fixed establishment but before obtaining a new VAT number as a non-established entity, the applicant also submitted VAT refund claims through the simplified procedure provided for by Directive 2008/9/EC, which were accepted by the Italian tax authorities.
Specifically, with regard to 2024, the applicant submitted a 2025 VAT return within the ordinary deadline but wishes to submit a supplementary 2025 VAT return with a compliance certificate (i.e. so called “visto di conformità”) and the related substitute declaration confirming the existence of the required subjective conditions in order to avoid having to provide a guarantee under Article 38-bis of the VAT Decree for its VAT credit surpluses transferred within the group VAT settlement and offset during 2024.
On this basis, the applicant asked the Italian tax authorities to:
- clarify, for the purposes of checking the requirement of having carried on business for less than two years under Article 38-bis, paragraph 4, of the VAT Decree in relation to its credit surpluses offset within the group VAT settlement, (i) the point from which the business activity should be considered as started and (ii) the point by which the two-year period should be deemed concluded;
- confirm that it is possible to avoid providing a guarantee by submitting a supplementary 2025 VAT return with a compliance certificate after the ordinary deadline but within the assessment deadlines under Article 57 of the VAT Decree, provided that, in the meantime, no inspections have been started by the Italian tax authorities;
- confirm the penalties due in the event of submission of a supplementary VAT return with a compliance certificate within 90 days of the ordinary deadline or later, but within the statute of limitations for assessment activity under Article 57 of the VAT Decree;
- clarify how the conditions set out in paragraphs 3, 4, 5 and 6 of Article 38-bis of the VAT Decree should be certified for the purpose of exemption from the requirement to provide a guarantee.
With regard to the first point, the Italian tax authorities does not appear to have explicitly clarified the moment from which business activity should be considered as started, but it does suggest that the two-year period was, in any case, complied with in this case.
On the one hand, the response merely rejects the applicant’s proposed solution, excluding that, as the start date of business activity, reference should be made to the first import made in Italy by the parent company and included in the 2022 VAT return submitted with the VAT number of the fixed establishment, whose inactivity would also suggest the existence of the “risk” circumstance under the aforementioned Article 38-bis, paragraph 4, of the VAT Decree.
On the other hand, the Italian tax authorities specifies that, for the purposes of checking the conditions for exemption from the guarantee requirement (including compliance with the two-year period) in the case of intragroup offsets, reference should be made to the date of submission of the VAT return.
However, it is worth noting that, even when answering the second and third questions, the Italian tax authorities referred to circular letter no. 33/E of 2016, emphasizing that the provision of the guarantee by the deadline for submitting the relevant VAT return constitutes a requirement for the completion of intragroup VAT offsets and that, in the event of late provision of the guarantee, offsets carried out within the group only take effect from the date the obligation (which is constitutive in nature) is fulfilled.
In relation to the second request, in line with the provisions of Article 8, paragraph 6-bis, of Presidential Decree no. 322/1998 and consistent with previous guidance documents (see circular letters no. 32/E of 30 December 2014, point 2.2.1, and no. 35/E of 27 October 2015), it is confirmed that, even in the event of intragroup VAT offsets, it is possible to submit a supplementary VAT return with a compliance certificate in order to obtain exemption from providing a guarantee within the statute of limitations for assessment activity under Article 57 of the VAT Decree, provided that no inspections, visits or audits have been initiated by the tax authorities.
With regard to the third question, in line with the clarifications provided in the aforementioned circular letter no. 33/E of 2016, the Italian tax authorities confirms that, where the supplementary VAT return with a compliance certificate is submitted with a delay:
- not exceeding ninety days from the ordinary deadline for submitting the VAT return, the formal penalties referred to in Article 11, paragraph 7-bis, of Legislative Decree no. 471/1997 would apply;
- exceeding ninety days from the ordinary deadline for submitting the VAT return, the proportional penalties provided for in Article 13, paragraph 6, of Legislative Decree no. 471/1997 would apply, in addition to statutory interest.
Finally, in answer to the last question, the Italian tax authorities, referring to circular letter no. 35/E of 2015, admits the possibility of submitting a supplementary VAT return also in order to include a substitute declaration that was originally omitted.
However, the Agency’s reference to compliance with the procedures and time limits set out in Resolution no. 99/E/2014, relating to quarterly refund applications, is not entirely clear.
On this point, although this clarification was not made by the Italian tax authorities, as it was not strictly relevant to the case at hand — where the applicant is a EU based legal entity that, in principle, is not required to submit further documentation in support of the self-certification — it is recalled that, according to ruling reply no. 211/2023, non-EU legal entities (even if they have appointed a tax representative) cannot self-certify possession of the financial conditions required for exemption from the guarantee. Instead, these must be documented “by means of certificates or attestations issued by the competent authority of the foreign State, accompanied by a translation into Italian authenticated by the Italian consular authority, which certifies conformity to the original, after having warned the interested party about the criminal consequences of producing false or untruthful acts or documents”.
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