The activity of construction sites that carry out works related to the Superbonus is slowing down and even the most recent data from Nomisma indicate a decreased interest of families in the facility.
The expensive materials now often leads to greatly exceeding not only the costs of estimates made a few months ago, but also the expenditure ceilings provided for by the legislation, partially nullifying the tax advantage for taxpayers; the most stringent rules on invoice discount and credit transfer launched following the discovery of a widespread system of scams (credits on non-existent jobs or for figures inflated beyond belief and deriving mostly from the facades bonus) are leading many condominiums to rethink their choices.
To these two factors, denounced for months by builders and condominium administrators, a third is added: the risks for banks that withdraw credit.
If some recent orientations of jurisprudence were not remedied in a clarification of the legislation, the risk of an almost total block of operations would be concrete. In fact, it should be remembered that the assignment of credit is essential for the superbonus: the share of taxpayers who opt to obtain the tax refund directly is irrelevant.
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Hypothesis of unlawfulness in the assignment of credit
But where do the risks for credit companies come from? He talks about it to the CourierFabrizio Capponi, chartered accountant, Partner, Head of International Tax, for Italy by the international Dentons firm. Everything starts, he specifies, from the provisions of the law that allows the transfer, the decree 34/20 known as the Relaunch Decree. “The art. 121 in paragraph 4 provides that suppliers and assignees are liable only for any irregular use or to a greater extent than the tax credit received, unless of course – as provided for in paragraph 6 below – the transferee has contributed to the fraud. Therefore, in the case of unlawful, the recovery of the amounts is carried out against the beneficiaries of the deduction while the transferee is jointly and severally liable only if he has contributed to the violation “. Subsequently, the Revenue Agency clarified, with the managerial provision of 8 August 2020, that if the total or partial non-existence of the necessary requirements is ascertained for the benefit, the Agency provides for the recovery of the amount corresponding to the deduction not due, plus interest and penalties, from the beneficiaries of the deduction while the transferees are liable only if they use the tax credit improperly or to a greater extent than to what was received.
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The criminal consequences
Now, “in the context of criminal investigations relating to the ascertainment of certain frauds – resumes our interlocutor – the Public Prosecutor’s Office intervened by ordering, in the hands of the assignees, including certain credit institutions, specific measures of preventive seizure of the assigned creditsdespite these lenders have been peacefully retained by the same Prosecutor of the Republic innocent subjects and in turn persons offenses from the fraudulent conduct under investigation “. Until the release from seizure occurs, the credits cannot be used and, according to the Relaunch Decreethe portion of the tax credit not used in the year cannot be used in subsequent years and cannot be requested as a refund.
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The period of seizure
The Executive, with art. 3 of the decree law 13/22 now awaiting conversion, has decided to remedy the problem, providing that the seizure period is not relevant for the purposes of calculating the annual limit. Practically, if the tax recovery of the year 2022 were to take place by 31 December of this year and on 1 April there was a seizure up to the end of September the transferee would have until June 2023 (six months more) to obtain a tax refund. «In reality – Fabrizio Capponi continues – the law does not appear to be able to provide a solution given that the review courts in some cases confirmed the effectiveness of the seizure orders believing that the credit originated in the event of fraud cannot be used in any way and, therefore, in fact, the release of the sums will never be ordered “.
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Possibility of requesting the reimbursement of credits
It is clear that a generalized orientation in this direction would lead institutions to slow down, if not completely stop, the purchase of credits and, even for accepted practices, it would be required a very expensive supplement of checks, which would affect the cost of the operation (the taxpayer who sells, that is, would receive less money). According to our interlocutor it is therefore intervention in parliamentary conversion is necessary, allowing «the transferees the possibility of requesting a refund receivables as soon as each term of use of the single installment has expired, in order not to incur budget constraints. The principle that the State in any case holds the transferee harmless in good faitheven in the presence of credits that are the product, the profit or in general the body of a crime, the State reserving any compensation action against the perpetrators of the fraudulent conduct “.
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