Upon the introduction of Legislative Decree 108/2024 – Official Gazette no. 182 on 5 August 2024, amendments to Legislative Decree 128/2015 were passed which integrated the provisions of the cooperative compliance regime (a recent topic of discussion from 15 July 2024).
The main features of the decree can be summarized as follows:
- Amendment to article 6, paragraph 4 of Legislative Decree no. 128/2015 – Criminal implications regarding tax risks declared in advance
Specifically regarding violations to tax law connected to risks of fiscal nature declared in a timely fashion to the Tax Authorities according to the methods as listed by said decree, the following shall be considered:
- the inapplicability of regulations set forth in article 4 of Legislative Decree no. 74/2000;
- the exemption of said violations from the Criminal Bureau report pursuant to article 331 of code of criminal procedure.
Tax violations characterized by fraudulent or deceptive conduct or those which rely on non-existent liabilities in annual declarations shall be considered excluded.
- Amendment to article 6, paragraph 3-ter, of Legislative Decree no. 128/2015 – Extension of cases where non-application of administrative penalties is implemented
Complete non-application of administrative penalties is provided for when dealing with violations relating to conduct carried out during fiscal years before that which the regime takes into account.
In this case, the declaration of risks, a behavior adopted by the taxpayer that shall be followed clearly and unambiguously, must be carried out within 120 days of notification of the acceptance to the regime, not including if the taxpayer was in any way aware of admissions, inspections, checks or the start of any verification activity. With regards to subjects already accepted to the regime, the reactivation of the terms for declaration related to previous tax years is envisaged (for these subjects, the aforementioned 120 days starts from the date when Legislative Decree 108/2024 takes effect);
- Amendment to article 7, paragraph 1-quater, of Legislative Decree no. 128/2015 – Subjective prerequisites for access to the regime
The subjective prerequisites for access to the regime relating to the subjects which belong to the same corporate group have been modified.
To that regard, the situation calls for the definition of the concept of group for the purpose of the norms in question: a group shall be considered a group of companies, enterprises and entities subject to a common supervision, pursuant to article 2359, paragraph 1, index 1) and 2) and paragraph 2 of the Civil Code.
In order to gain access to the cooperative compliance regime, at least one member of the group that the taxpayer belongs to must satisfy the dimensional prerequisites in order to be accepted, while the group must also hold a Tax Control Framework certificate.
- Amendment to article 7-bis, paragraph 2 of Legislative Decree no. 128/2015 – Subjective prerequisites regarding access to the regime
Sanction coverage has also been extended to taxpayers who do not possess the prerequisites to gain access to cooperative compliance but have adopted the Tax Control Framework certificate system.
More specifically for said taxpayers, administrative sanctions and provisions from article 4 of Legislative Decree no. 74/2000 are not applied for crimes of fraudulent declaration regarding inherent violations of risks of fiscal nature declared by the taxpayer in a preventative manner with request for ruling, not including cases of fiscal violations characterized by fraudulent or deceptive conduct or those which rely on non-existent liabilities.
Said violations shall not constitute crimes under the Crime Bureau report pursuant to article 331 of the code of criminal procedure.
