13 Oct 2021 - VAT recoveries
The Sostegni bis decree passed by the Government, provides for the possibility of proceeding with the recovery of VAT by means of a decrease for non-payment of all or part of the consideration starting from the date on which the transferee or client is subject to insolvency proceedings (Dl 73/21 article 18, amending article 26 paragraph 2 of Presidential Decree 633/72).
The Italian legislator has adapted to Directive 2006/112 (article 90), which establishes as a rule the obligation to reduce the taxable base of the seller or provider since the taxable base is made up of the consideration actually received.
It is always possible to issue the credit note following individual executive procedures that prove unsuccessful.
The legislator has always limited the relevance of non-payment to the sole hypothesis of "insolvency proceedings or executive procedures that have remained unsuccessful" because only in such circumstances there is a reasonable certainty of the debtor's assets insufficient, assuming constitutive importance, the circumstance that the creditor has carried out all the actions aimed at recovering his credit.
The Sostegni bis decree-law, in reformulating the text of article 26 of Presidential Decree 633/72, it confirmed the system established by law 208/15 in force since 2016, giving the supplier the possibility to deduct the tax corresponding to the decrease (in the electronic document the code is TD8) due to individual enforcement procedures that remained unsuccessful.
The unsuccessful individual executions
Forced expropriation, It starts with foreclosure; notification of the enforcement order (ad. es. injunctive decree, judgment) and of the precept constitute prodromal acts.
The right to the variation is subject to verification of the fruitlessness of the procedure, a moment that normally comes into existence when the credit of the transferor or lender is not satisfied through the distribution of the sums obtained from the sale of the assets of the executor.
The individual enforcement procedure must in any case be considered unsuccessful in the event of:
- seizure from third parties, when third parties make a negative statement;
- attachment of movable property, when the attachment report shows the lack of assets to be seized or the impossibility of accessing the debtor's domicile or its unavailability;
- when after three auctions for the sale of the foreclosed property you go deserted, it was decided to interrupt the enforcement procedure due to excessive burdens.
The right to decrease the tax to recover one's credit, the exercise of which is optional (Cassation n. 5403/2017), it therefore presupposes that an enforcement procedure has been initiated, then ended unsuccessfully.
The rationale of the rule, ultimately, lies in the need for the fruitlessness of the procedure to be verified by a third party (bailiff and / or execution judge) and not left to the discretion of the seizing creditor; in any case, the prerequisite for issuing the note of decreasing variation must be evaluated according to the circumstances of the specific case, taking into account the Community principle of proportionality and the diligence criterion, which also includes those cases in which the executive procedure is characterized by uneconomical nature.
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Ultimately, as a result of the novelty introduced by the Support-bis Decree, it will be possible to recover VAT on receivables from customers in insolvency proceedings (these are procedures open since 26.05.2021), already at the opening of the procedure.
The possibility of recoveryit does not therefore only concern bankruptcy procedures properly so-called (failure, arrangement and compulsory administrative liquidation) but it also extends to the case of subjection of the transferee / client to the procedure ofextraordinary administration of large companies in crisis.