From October 1 full penalty for late invoices

The purpose of this document is to illustrate the sanctioning profiles connected to the late transmission of electronic invoices between private parties after the reduced penalties period with taking effect from October 1.

Please note that for I.V.A. purposes, the moment in which transaction took place is identified:

  • At the time of stipulation, if the transaction relates to real estate;
  • At the time of delivery or shipment, if the transaction relates to movable property;
  • At the time of payment of the receipt, if the transaction relates to the provision of services.

If an invoice is issued before than what established in the previous points, independently of the amount paid, is considered to have been made on the invoice date not on the date of the payment. Regarding invoicing rules, article 21 of the I.V.A. decree states that the invoice is issued when it is delivered, shipped, sent, or made available to the assignee or customer. Furthermore, according to Article 21 the invoice must be sent to the SDI within 12 days from the moment in which executes the transaction. The only exception refers to deferred invoices which must be sent within the 15th day of the month following the one of the transaction.

As established by article 6 of Legislative Decree 127/2015, recently amended by Article 1 of Law 145/2018, the penalty regime applicable to the late issue of invoices is governed by Article 6 of Legislative Decree 471/97, which establishes a different type of sanction based on the violation committed.

In the first paragraph it is established that:

  • If the violation has affected the correct VAT liquidation, the administrative sanction is between 90% and 180% of the tax relating to the tax base not properly documented or recorded, with a minimum of Euro 500.
  • If the violation has not affected the correct VAT liquidation, the applicable administrative sanction is between € 250 and € 2,000.

The second paragraph establishes that if the violation relates to documents relating to non-taxable, exempt, not subject to VAT or subject to reverse charge, the applicable sanction is:

  • Between 5% and 10% of undocumented or unrecorded receipts if the violation involves a change in the determination of income;
  • Between € 250 and € 2,000, if the violation is not relevant for the purpose of determining the income.

Nevertheless, for a long period of the 2019, the legislator has expected reduced penalties. In fact, pursuant to art. 6 of Legislative Decree 127/2015, it is established that sanctions in the first half of 2019:

  • Are not applied, provided that the invoice is issued within the period of the periodic VAT liquidation;
  • Are applied with an 80% reduction, on the condition that the invoice is issued within the following period of the periodic VAT liquidation.

For taxpayers who pay the tax monthly, the 80% reduction is extended until September 30.

In conclusion, summarizing what has been said up to this point, the reduced penalty regime will be applied only to taxpayers who by November 18 (term for carrying out the periodic VAT liquidation of the following period both for monthly and quarterly taxpayers) will send the invoices:

  • Related to the second quarter of 2019 for taxpayers who liquidate VAT on a quarterly basis;
  • Related to September 2019 for taxpayers who liquidate the VAT on a monthly basis.

It is possible to remedy these violations through the voluntary tax correction pursuant to article 13 c.1 Legislative Decree 472/1997.

Our professional staff from Andersen & Legal remain at your disposal for any clarification.