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The taxpayer's rights
The right of questioning
By presenting a request for questioning citizens have the possibility to question the Financial Administration to find out the solution to his/her specific and personal case, regarding which objective conditions of uncertainty exist. Ordinary questioning is subject to a set of specific conditions and must be carried out following precise procedures.
Issues covered by questioning
When "objective uncertainty" exists about the application of tax provisions to a concrete and individual case, the taxpayer can submit a query to the Financial Administration that will provide an opinion within 120 days. In case no response is given within the aforementioned deadline, it is assumed that the Administration agrees with the interpretation proposed by the petitioner (consent by silence). The queries falling within the competence of the Italian Revenue Agency can concern in particular:
- Income tax
- Value Added Tax
- Irap
- registration fee
- stamp duty
- licence taxes
- entertainment duty and other minor taxes
For taxes the Italian Revenue Agency is not competent for, the taxpayer can submit a query to the body in charge of their management (for example, the Customs Office for excise duties, town councils for the ICI and other local taxes, provincial and regional councils for provincial and regional taxes respectively). With regard to IRAP, the competence to deal with the questioning falls upon the same administration that exercises powers of verification. In general, the power of verification concerning IRAP is assigned to the Italian Revenue Agency, unless otherwise established by the regional laws and by the agreements reached on the matter.
When the questioning can be lodged
The taxpayer can lodge a query to the Financial Administration when:
- he/she is interested in knowing the interpretation of certain rules since he/she needs to apply them to his/her "concrete and individual case"
- objective conditions of uncertainty exist on the interpretation of the rule that has to be applied.
These conditions are not valid if the administration has fully provided the interpretation solution of cases similar to the one set out in the questioning through a circular letter, resolution or other document made available to the taxpayer through its publication in the section “Circulars, Resolutions, Communications” on the web site of the Italian Revenue Agency or of the Ministry of Economy and Finance;
- he/she has not yet implemented the rule subject to questioning or undertaken any behaviour that may be relevant for tax purposes.
To whom it should be lodged
The query, written on ordinary paper, does not require the adoption of particular forms. It must be submitted to the relevant regional directorate of the Italian Revenue Agency on the basis of the residence for tax purposes of the taxpayer, delivered by hand or posted, in a folder, by recorded delivery with notice of receipt.
An exception is made for the central administrations of the State, public bodies with national relevance and the taxpayers who, in the previous tax period, earned an income higher than 258,228,449.54 euros, and who submit the query to the Central Directorate of Regulations and Litigations of the Italian Revenue Agency.
If the query is sent to the wrong Directorate, this is required to promptly forward it to the relevant one, at the same time informing the taxpayer. In this case, the deadline for the answer starts from the date of receipt of the query by the relevant Directorate.
Non-residents can submit the query directly : Agenzia delle Entrate – Direzione Centrale Normativa – Ufficio del Direttore Centrale via Cristoforo Colombo 426, 00145 Rome or to the relevant Regional Directorate on the basis of the residence for tax purposes of the agent or delegate that has been appointed for receipt of the answer, assigning to that person a special power of attorney according to the modalities set out in article 63 of the Presidential Decree n. 600 of 1973.
Information to include
The query must include:
- the details for identification of the taxpayer and if necessary his/her legal representative
- the detailed and specific description of the concrete and individual case regarding which objective conditions of uncertainty exist
- the domicile of the taxpayer or of his/her legal representative
- the signature of the taxpayer or of his/her legal representative.
If any of these requirements are missing the request is inadmissible and ineffective. However, the Administration will communicate, within the deadlines established by law, the inadmissibility of the request to the taxpayer and in the event that objective conditions of uncertainty do not exist it will also indicate the circular or resolution containing the requested interpretation solution.
In the event that the taxpayer has not signed the query, the same can be regularised within thirty days from the receipt of the relative invitation to do so on behalf of the relevant Directorate of the Italian Revenue Agency.
The deadline within which the Italian Revenue Agency is obliged to answer starts from the date on which the document is signed.
Supporting documentation to attach
If the supporting documentation is insufficient to allow the correct framing of the issue, the Administration can ask, only once, that the taxpayer integrate the documentation. In this case, the deadline for the answer is interrupted and a new one starts from the date of receipt of all the necessary documents by the Italian Revenue Agency.
The query does not defer the deadlines
The lodging of the questioning has no effect on the deadlines envisaged by taxation rules, or on the passing of the times prescribed for prescription, and it does not entail the interruption or suspension of the deadlines of limitation. Therefore the taxpayer is not able to delay the fulfilment of his/her taxation obligations object of the query (for example the payment of VAT, the submission of income tax return) to the date on which the Revenue replies to the questioning.
The administration's response
Within 120 days from the lodging of the questioning, the relevant Directorate must provide a written and motivated response to the taxpayer. The response can be notified following the procedure envisaged for verification notices, or it can be communicated by recorded delivery with notice of receipt or even electronically, to the fax number or e-mail address provided in the query.
In case several queries concerning the same issue or similar issues are put forward, the Italian Revenue Agency can provide a collective response through a circular or resolution, to be published in the section “Circulars, Resolutions, Communications” of the web site of the Italian Revenue Agency or of the Minister of Finance. In this case the administration is however obliged to provide a written response to each taxpayer to communicate the details of the circular or resolution containing the requested interpretation solution.
If the taxpayer does not obtain a response on behalf of the Italian Revenue Agency within the deadline of 120 days, it is understood that the Revenue agrees with the interpretative solution proposed by the taxpayer (consent by silence). However, consent by silence exists only if:
- the taxpayer has explained clearly and unambiguously the behaviour and the interpretative solution he/she intends to adopt;
- the query is admissible.
Effects of the questioning
The response of the Italian Revenue Agency affects exclusively the taxpayer who has submitted the questioning, and only with regard to the specific and individual case presented. This effectiveness can extend also to subsequent behaviour of the taxpayer that can be referred to the case for which questioning has been requested, unless the Italian Revenue Agency corrects the interpretative solution.
The response provided by the Italian Revenue Agency does not bind the taxpayer to conform. Indeed, the taxpayer is free to adopt a different behaviour. On the other hand, with regards to the issue which is the subject of questioning, the answer provided binds the actions of the Italian Revenue Agency, which will not be able to issue verification acts in contrast.
Possible correction of the answer
The Revenue can communicate to the taxpayer a new answer to correct the one previously provided (explicitly or implicitly). To this end it is appropriate to identify different possible situations.
If the taxpayer, before the correction, has already begun to behave according to the questioning, complying with the interpretation previously received (or, in the event that no answer was given, with the interpretation put forward in the query), no claim can be laid by the administration neither for the taxes nor for the sanctions. If, on the other hand, the taxpayer has already carried out the behaviour by the date of receipt of the correcting answer, but in the questioning omitted to indicate the interpretative solution, the Italian Revenue Agency can recover the tax and interests, excluding the penalties. Lastly, if the taxpayer has not yet begun behaving in conformity with the first answer and, notwithstanding the changed interpretation of the Italian Revenue Agency, he/she follows the original interpretative solution, he/she will be obliged to pay the increased taxes possibly due and the relative interests deriving from the correcting answer, excluding sanctions.
