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The VAT grouping regime: implications and effects of the implementation in the Italian tax system (di Angelo Contrino, Professore ordinario di diritto tributario presso l’Università “L. Bocconi”. Avvocato tributarista e Dottore commercialista in Milano Carlotta Sgattoni, Docente a contratto di diritto tributario presso l’Università “L. Bocconi”. Dottore commercialista in Milano.)

This article analyses the implications and effects of the implementation in Italia of the EUE VAT group regime, also in the light of the clarifications provided by the Revenue Agency.

La disciplina del gruppo IVA: implicazioni ed effetti dell’attuazione nel sistema tributario italiano

Il contributo illustra le implicazioni e gli effetti dell’attuazione in Italia della disciplina europea del Gruppo Iva, anche alla luce dei recenti chiarimenti forniti dall’Agenzia delle entrate.

1. The implementation and the enforcement of the VAT group regime in the Italian legislation By Law No. 236 of 11 December 2016 (herein after the “Budget Law for 2017”), the Italian lawmaker introduced the VAT grouping scheme into the national legislation, in accordance with Article 11 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (hereinafter the “VAT Directive”) [1], whereby a Member State, after consulting the advisory committee on value added tax (herein after the “VAT committee”), may regard two or more persons established in that Member State who, while legally independent, are closely bound to one another by financial, economic and organisational links, as a single taxable person for VAT purposes [2]. More specifically, Article 1, par. 24, of the Budget Law for 2017 added Articles from 70-bis to 70-duodecies to the Presidential Decree No. 633 of 26 October 1972 (herein after the “VAT Decree”), laying down the rules of the Italian VAT grouping scheme. This provisions – applicable as of 1 January 2018 and effective from 2019 – were subsequently amended by Law No. 205 of December 2017 [3] (herein after the “Budget Law for 2018”), in order to directly introduce into Italian law the outcome of the Court of Justice of the European Union’s decision in the Skandia Case [4], and by Law Decree No. 119 of October 2018 [5], which provides for the VAT Group to be accessed also by members of a Cooperative Banking Group (Gruppo Bancario Cooperativo), meeting the requirement of the financial link de jure. Moreover, on 6 April 2018, the Ministerial Decree providing the implementing details of the Italian VAT group was published in the Official Gazzette (hereinafter, the “Ministerial Decree”) and, on 19 September 2018, the Revenue Agency approved the form “AGI/1” to be used to opt for the Italian VAT group. The Revenue Agency also provides clarification by Circular Letter No. 19/E released on 31 October 2018 and by Resolutions No. 487 of 15 November 2019, No. 72/E of 1 August 2019, No. 222 of 1 July 2019, No. 194 of 17 June 2019 and No. 54/E of 10 July 2018. More recently, the Revenue Agency provides further clarifications by Principle of Law No. 16 of 14 September 2020 and Resolutions No. 374 of 17 September 2020, No. 526 of 4 November 2020, No. 539 of 11 November 2020, No. 626 of 28 December 2020, No. 124 of 24 February 2021, No. 143 of 3 March 2021 and No. 220 of 26 March 2021. 2. Subjective requirements to join a VAT group. The exclusion of non-taxable persons and of persons established outside the Italian territory: the effects of the provision connected to the financial link Under Article 70-bis, par. 1, of the VAT Decree, a VAT group can be formed by taxable persons carrying out business or crafts or professional activities established in the territory of the State as [continua..]

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