The amnesty of formal violations

published on 15 March 2023 | reading time approx. 4 minutes

The Budget Law 2023 in Article 1 paragraphs 166-173 introduced the amnesty of formal errors. This amnesty covers irregularities, infringements and non-compliance with obligations or fulfilments of a formal nature committed up to 31 October 2022 that have not resulted in the payment of lower taxes or the determination of a lower tax base on Corporate Income, Regional Income and VAT.

The law provides that “irregularities, infractions and non-compliance with obligations or fulfilments, of a formal nature, which do not affect the determination of the taxable base for corporate income tax, value added tax and regional income tax and the payment of these taxes, committed until 31 October 2022 can be regularized by paying an amount of Euro 200 for each tax period to which the infringements refer”.

In order to finalize the amnesty, it is necessary:

pay an amount of Euro 200 for each year that the taxpayer intends to regularize with the amnesty, and
remove the irregularity.

The payment must be made through the F24 form using the tax code TF44 - Regularisation of formal violations to be indicated in the 'erario' section.

Payment can be made alternatively:

in a single instalment by 31 March 2023;
in two equal instalments to be paid by March 31, 2023 and March 31, 2024.

In order to remove the irregularity, the taxpayer must correct the omitted or improper compliance by 31 March 2024.

The Revenue Agency, by order No. 27629 of January 30, 2023, states that if the taxpayer does not remove all the breaches subject to regularization, the same shall nevertheless take effect if the removal takes place within a deadline set by the Revenue Agency, which cannot be less than 30 days. The failure to remove all formal violations, in any case, does not affect the effects of regularization on the violations removed.

By way of example, but not limited to, the violations that can be amended are (Agenzia delle Entrate Circular 2/E/2023):

The submission of annual returns drawn up not in accordance with the approved models or the incorrect indication of the taxpayer's data;
The omission or irregular submission of data on invoices issued and received or on periodic VAT settlements;
The omission, irregular or incomplete submission of Intrastat lists;
Violation of obligations concerning the documentation and registration of non-taxable transactions for VAT purposes, provided that the violation did not affect the correct settlement of the tax;
Violation of obligations concerning the documentation and recording of transactions that are not taxable, exempt or subject to VAT, provided that the violation is also not relevant to the determination of income;
Irregular application of the reverse charge provisions in the absence of fraud;
Non-registration in VIES.

The following breaches are excluded from amnesty:

breaches contested in final acts as at 1 January 2023;
late or omitted communications to ENEA;
failure to file corporate income, Regional Income and VAT returns;
irregularities committed with regard to the filling in of the RW form.

Purely formal breaches are excluded, as they are not sanctionable under Article 10 of Law No. 212/2000 and Article 6 para. 5-bis of Legislative Decree No. 472/97.

The most common formal electronic tax violations covered by the amnesty are highlighted below:

The late transmission of electronic invoices through SDI (i.e. Interchange System);
Late or non-transmission of daily proceeds;
The late or non-submission of cross-border transactions.

It should be noted that with regard to the late issuance of electronic invoices through SDI, it is necessary to distinguish transactions that are taxable for VAT purposes from those that are non-taxable, exempt or not subject to VAT.

Regarding to the late submission to the SDI of taxable transactions for VAT purposes, the violation is considered formal when it did not affect the correct settlement of the VAT, i.e. when the electronic invoice was transmitted to the SDI within the deadline for the quarterly VAT settlement and the VAT was correctly settled.

Concerning to the late submission to the SDI of non-taxable, exempt or non-VAT transactions, the violation is considered formal when it does not affect the determination of income, i.e., when the electronic invoice was submitted through SDI by the deadline for filing the corporate income tax return and the fee was included in the income determination.

Regarding to the late or non-transmission of the daily proceeds, the violation is considered formal when the omissions, delays, incompleteness of the data or their incorrectness did not affect the correct settlement of the tax.

With regard to the late or non-submission of data on cross-border transactions (i.e., the omission or late submission of TD17 - TD18 - TD19 document), the breach is defined as formal if the taxpayer has settled the VAT.