SUMMARY – Finanza & Fisco n. 31 of 2019

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Bonus business combination operations (mergers, demergers and contributions). Tax and accounting profiles
by Marco Orlandi

Flat rate scheme. The changes being introduced by D.d.L. 2020 Budget and new clarifications from Revenue
by Enrico Molteni

The text of the art. 88, of the A.S. n. 1586, bearing: «State budget for the 2020 financial year and multi-year budget for the 2020-2022 period»

Law

EC Court of Justice:

Principle of respect for the rights of the defense – Right to be heard – Access to the file

Right of access to documents and relevance of the "good faith”Of the transferee in VAT fraud committed by third parties. The EU Court of Justice sets the cardinal principles for the exercise of the right to defense

EC Court of Justice – Section V – Judgment of 16 October 2019, Case C-189/18: "VAT (Value Added Tax) – VAT Directive – Reference for a preliminary ruling – Common system of value added tax (VAT) – Right to deduct VAT – Refusal – Fraud – Taking of evidence – Evidence obtained in proceedings against third parties – Principle of respect for the rights of the defense – Right to be heard – Access to the file – Article 47 of the Charter of Fundamental Rights of the European Union ("Charter") – Effective jurisdictional syndicate – Principle of equality of arms – Principle of contradictory – Regulation or practice national law according to which, in verifying the right relied on by a taxable person to deduct VAT, the tax authorities are bound by the findings of fact and the legal qualifications made by it in the context of related administrative proceedings in which that taxable person it was not a party – Articles 167 and 168 of Directive 2006/112 / EC of the Council of 28 November 2006»

Supreme Court of Cassation:

Regular exporters – Effects of variation notes on ceiling

Notes of variation and use ceiling VAT regular exporters. The date of registration of the note is not relevant. Reference should be made only to the period of realization of the original transaction

Supreme Court of Cassation – Civil V Tax Section – Ruling no. 25485 of 10 October 2019: "VAT (Value Added Tax) – Sale of assets – “Plafond” system – Mechanism – Regular exporters – Integration of the original transaction price during the subsequent tax period – Effects of the variation notes on the ceiling – Issuance of debit notes relating to operations of the previous year – Effects on the capacity of the ceiling necessary to qualify for non-application of VAT – Statement with reference to the year of registration of the invoice for the original transaction – Reference to the year in which a note is issued "amending" debt – Exclusion – Article 8, paragraph 1, lett. c) of the D.P.R. 26/10/1972, n. 633 – Article 26 of the D.P.R. 26/10/1972, n. 633»

Tax Commissions:

Analytical-inductive assessments – Self-employment income

Business consultant. It is expensive to the Fisco to try to try the sub-billing with the only reference to minimum fees "Recommended"By a trade union association of the category

Provincial Tax Commission of Pescara – Section II – Sentence n. 504 of October 14, 2019: "TAX ASSESSMENT – Intellectual professions – Self-employment income – Analytical-inductive assessment – Compensation (honorary) – Determination – Accounting records regularly maintained – Deficiency of fees charged by the professional with respect to “recommended” fees by one of the national trade union associations of Accountants – Sufficiency for the purpose of ascertaining the increased income – Exclusion – Existence of further elements incident on the overall reliability of the declaration – Indication of presumed elements supported by the requirements of art. 2729 cod. civ. – Need – Article 39, paragraph 1, letter d) of the D.P.R. 09/29/1973, n. 600 – Article 2729 of the Civil Code»

Practice

Flat-rate scheme – Residence requirements Causes impeding the flat rate: new clarifications from Revenue 4 responses to questions concerning the causes of impediments to access and permanence Text and summary of opinions provided by the Revenue Agency n. 398, n. 399, n. 401 and n. 484 40% shareholder and co-director of engineering company Srl. Subject to verification of a control c.d. in fact, the engineer does not lapse from the flat-rate scheme Answer to interpello – Agenzia delle Entrate – n. 398 of 8 October 2019: "ACCOUNTING AND TAX REGIMES – NEW FLAT RATE REGULATIONS – Changes to the flat-rate scheme – Extension of the flat-rate scheme, with a single 15% substitute tax, to tax payers with revenues or fees up to a maximum of 65,000 euros – Entry and permanence – Application requirements – Obstacles – Direct or indirect control of a limited liability company and operation by the same Srl of economic activities directly or indirectly attributable to those carried out by the company, arts or professions – Engineering company S.r.l., of which the taxpayer is also co-administrator – ATECO codes of the two activities performed respectively by the professional and the company S.r.l. 40% owned within the same section ATECO – Non-configurability of a control of law or the exercise of a dominant influence – Exclusion of the presence of the impediment as per letter d) of paragraph 57 of article 1 of law n. 190 of 2014 – Article 1, paragraphs 54-89, of Law 23/12/2014, n. 190, as amended by art. 1, paragraphs from 9 to 11, of the L. 30/12/2018, n. 145 (2019 Budget Law)» The verification of the prevalence on the turnover at the end of the application tax period Answer to interpello – Agenzia delle Entrate – n. 399 of 8 October 2019: "ACCOUNTING AND TAX REGIMES – NEW FLAT RATE REGULATIONS – Changes to the flat-rate scheme – Extension of the flat-rate scheme, with a single 15% substitute tax, to tax payers with revenues or fees up to a maximum of 65,000 euros – Entry and permanence – Application requirements – Obstructive cause as per letter d-bis) of paragraph 57, article 1, of the law 23 December 2014, n. 190 (activity mainly carried out with employers with whom work relationships are in progress or were in the two previous tax periods or towards subjects directly or indirectly attributable to the aforementioned employers) – Industrial expert who receives in the period of surveillance by his new employer with regard to 2019, professional fees exceeding 50 per cent of annual turnover – Verification of the requirement of prevalence carried out only at the end of the tax period (in this case 2019) – Statement – Consequences – Possibility of the tax payer to adhere to the flat-rate scheme for 2019 as the presence of the impediment cause must be assessed at the end of the year 2019 – Article 1, paragraphs 54-89, of the Law 23/12/2014, n. 190, as amended by art. 1, paragraphs from 9 to 11, of the L. 30/12/2018, n. 145 (2019 Budget Law)» The reason for the application of the regime was not applied if the billing mainly towards the employer depended on causes unrelated to the will of the professional Answer to interpello – Agenzia delle Entrate – n. 401 of 9 October 2019: "ACCOUNTING AND TAX REGIMES – NEW FLAT RATE REGULATIONS – Changes to the flat-rate scheme – Extension of the flat-rate scheme, with a single 15% substitute tax, to tax payers with revenues or fees up to a maximum of 65,000 euros – Entry and permanence – Application requirements – Obstacles – Exclusion from the scope of application of the specific impediment provided for by lett. d-bis), paragraph 57, of the art. 1, of the Law of 23 December 2014, n. 190 – Conditions – In the period of surveillance, a dual work relationship, autonomous and dependent without substantial changes aimed at artificially transferring a share of income received from the type of work income dependent on that of income from self-employment in the facilitated regime – Case – Obligation to invoice his / her employer, not attributable to the tax payer, but deriving from an agreement concluded between the employer and the Agency for the protection of health (ATS) in fulfillment of the obligation imposed by the judicial authority – Consequences – Application of the regime lump sum also in the presence of the dual employment relationship (autonomous and dependent) – Article 1, paragraphs 54-89, of Law 23/12/2014, n. 190, as amended by art. 1, paragraphs from 9 to 11, of the L. 30/12/2018, n. 145 (2019 Budget Law)» The "mixed" contract for self-employed and subordinate work does not exclude the application of the flat-rate scheme as long as employee income does not pass through the quota for self-employment Answer to interpello – Agenzia delle Entrate – n. 484 of November 13, 2019: "ACCOUNTING AND TAX REGIMES – NEW FLAT RATE REGULATIONS – Changes to the flat-rate scheme – Extension of the flat-rate scheme, with a single 15% substitute tax, to tax payers with revenues or fees up to a maximum of 65,000 euros – Entry and permanence – Application requirements – Obstacles – Exclusion from the scope of application of the specific impediment provided for in letter d-bis), paragraph 57, article 1, of the law of 23 December 2014, n. 190 – Conditions – In the period of surveillance, dual work relationship, autonomous and dependent without substantial changes aimed at artificially transferring a share of income received from the type of income from work dependent on that of income from self-employment in the facilitated regime – Case – Stipula after 1 January 2019, under a union agreement, mixed contracts in which the taxpayer maintains, with the same subject (employer and client), both an employment relationship and a professional one – Application of the regime lump sum also in the presence of a dual work relationship (autonomous and dependent) – Conditions – Absence of a pre-existing dependent employment relationship – Reasons – I find that the mixed relationship does not hide an artificial transformation of employee work activities in self-employment – Art 1, paragraphs 54-89, of the L. 23/12/2014, n. 190, as amended by art. 1, paragraphs from 9 to 11, of the L. 30/12/2018, n. 145 (2019 Budget Law)»

Failure (or late) billing or registration of taxable transactions – industrious and legal accumulation

late e-invoicing. Applicable legal combination former art. 12 of Legislative Decree no. 472/97 as an alternative to repentance

Legal principle of the Inland Revenue n. 23 of 11 November 2019: "VAT (Value Added Tax) – ELECTRONIC INVOICING – TAX SANCTIONS – Competition for violations and continuous violations – Plurality of substantial violations – Various violations "reunited" due to their progression – Billing violations – Omitted (or late) billing or recording of taxable transactions – Case of species – Lot of electronic invoices rejected by the ES – Constraint of the progression of violations – Configurability – Legal accumulation of sanctions for several related violations – Possibilities – Effective repatriation and legal accumulation – Alternativity of the two institutions – Affirmation – Article 1, paragraph 6, of Legislative Decree 05/08/2015, n. 127 – Article 10-bis of the Legislative Decree 10/23/2018, n. 119, conv., With form, from the L. 17/12/2018, n. 136 – Order of the Director of the Revenue Agency 30 April 2018, prot. n. 89757/2018 – Article 6, paragraph 1, first sentence, of Legislative Decree 18/12/1997, n. 471 – Article 12, of Legislative Decree 12/18/1997, n. 472 – Article 13, of Legislative Decree 12/18/1997, n. 472 • VAT (Value Added Tax) – ELECTRONIC INVOICING – TAX SANCTIONS – Competition for violations and continuous violations – Plurality of violations – Formal violations of the same provision of the law – Violations in the matter of invoicing – Late invoicing for the rejection of the lot from the lot of electronic invoices – Case of species – Violations that have not affected the correct liquidation of VAT – Configurability of a hypothesis of homogeneous material competition of violations of a formal nature – Application of the legal accumulation – Possibility – Article 1, paragraph 6, of the D .Lgs. 05/08/2015, n. 127 – Article 10-bis of the Legislative Decree 10/23/2018, n. 119, conv., With form, from the L. 17/12/2018, n. 136 – Order of the Director of the Revenue Agency 30 April 2018, prot. n. 89757/2018 – Article 6, paragraph 1, third sentence, of Legislative Decree 18/12/1997, n. 471 – Article 12, of Legislative Decree 12/18/1997, n. 472 – Article 13, of Legislative Decree 12/18/1997, n. 472»

Advances of tax – Perimeter of application of the advances calculated at 50%

Perimeter of application of advances at 50%. Recalculation for the same subjects who benefited from the extension to 30 September 2019

Revenue Agency Resolution n. 93 E of 12 November 2019: "COLLECTION – ISA (Summary indices of fiscal reliability) – Restatement of installments of tax advances – Perimeter of application of advance payments calculated at 50% – Subjective scope – Taxpayers who carry out economic activities for which the summary indices of fiscal reliability have been approved who declare revenues or fees of an amount not exceeding the limit established for each ISA – Objective field – IRPEF, IRES, IRAP, substitute tax due from flat rate tax payers, Dry Coupon, IVIE and IVAFE – Art. 58, of the Law Decree 10/26/2019, n. 124 (so-called "Fiscal Decree") – Article 12-quinquies, paragraphs 3 and 4, of Legislative Decree 04/30/2019, n. 34, conv., With form, from the L. 28/06/2019, n. 58 (so-called "Growth Decree") – Art. 17, of the D.P.R. 12/07/2001, n. 435»

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