Virtual stamp on electronic invoices: the news of the tax decree

The virtual stamp on electronic invoices, arranged byArticle 6 DM 17.06.2014, does not find peace.

We recall that from April 2019 the Revenue Agency has made available on the Invoices and Payments portal, the service that allows VAT payers to verify the calculation and pay the stamp duty due on electronic invoices transmitted through the Exchange System (SdI), in accordance with the decree of the Minister of Economy and Finance of December 28, 2018.

For electronic invoices issued via ES in the reference quarter, the service allows view the number of documents for which the stamp duty has been indicated and the total amount of the declared tax. The service currently allows to change the number of invoices for which the stamp duty must be paid and consequently calculates the total amount due.

THE'article 17 D.L. 124/2019 (Tax decree) introduces a specific communication procedure between Administration and tax payer to locate the quantum due in the event of delayed, omitted or insufficient payment of stamp duty due on electronic invoices.

The financial administration must communicate to the tax payer the amount of the tax to be paid, in addition to penalties for late payment and interest.

THE'Article 12-novies D.L. 34/2019 allows the Revenue Agency, already in the phase of receiving electronic invoices, to verify with automated procedures the correct annotation of the stamp duty payment, having regard to the nature and to theamount of the transactions indicated in the invoices themselves.

If the Agency detects that the specific note of payment of the stamp duty has not been affixed to the electronic invoices, can integrate the same invoices with automated procedures, already in the receiving phase on the Interchange System (governed by theArticle 1, paragraphs 211 and 212, Law 244/2007, Finance Act 2008).

The Agency includes in the calculation of the tax due, to be made known to each taxable person VAT (pursuant to theArticle 6, paragraph 2, Ministerial Decree 06/16/2014) is the tax due based on what is correctly stated on the invoice, is the largest tax calculated on invoices in which the payment of the tax has not been correctly indicated.

In the residual cases in which it is not possible to carry out this verification with automated procedures, however, the ordinary regularization procedures of performance of the stamp duty and recovery of the tax, pursuant to Presidential Decree 642/1972 (Consolidated text on stamp duty).

In the case of failure, insufficient or late payment of the tax – made known by the Revenue Agency according to ordinary procedures – the previously applicable law provided for the imposition of the penalty for late or omitted payments, equal to 30% of the amount not paid (pursuant toArticle 13, paragraph 1, Legislative Decree 471/1997). For payments made with a delay not more than ninety days, the penalty set out above is instead reduced to half while, for payments made with a delay not exceeding fifteen days, the sanction is further reduced to an amount equal to one fifteenth for each day of delay.

Among the novelties of the fiscal decree, a specification is introduced, as anticipated electronic communication procedure between Administration and tax payer to define the amount due in case of delay, omitted or insufficient payment of the tax (instead of the missed, insufficient or late payment of the same).

In this case, theArticle 17, paragraph 1, letter a), Legislative Decree 124/2019 provides that the administrative sanction imposed by the offices of the Agency, due under theArticle 13, paragraph 1, Legislative Decree 471/1997, comes reduced to a third (10%, instead of the ordinary penalty of 30%). Regarding the interestsinstead, those will be communicated due until the last day of the month prior to that of the communication processing.

Self within thirty days of receipt of the communication the tax payer remains inert, ie does not provide payment in whole or in part of the sums due, the competent office of the Agency of Revenue proceeds to the final registration in the role.

The provisions in question are applicable for invoices sent through the Exchange System as of 1 January 2020.

By decree of the Minister of the Economy and Finance, the implementing provisions for the new items under discussion will be adopted, including the procedures for the recovery of the unpaid stamp duty and the imposition of sanctions.

Finally, according to the current rules for the transmission of the xml file and on the basis of the legislative decree of theArticle 21 D.P.R. 633/1972 on the invoice reporting the reference standard is not mandatory of the single VAT text; therefore, to date, the only nature of operation (for example, N3 – non-taxable transaction) cannot be enough to activate the communication of "anomaly" by the Administration. Consider the case of non-taxable invoices pursuant to theArticle 8 D.P.R. 633/1972, for which only the letter c) of the first paragraph – declaration of intent – requires virtual stamp duty.