The new mandatory audit procedure

The Law Decree no. 34/2019 – so-called Decreto Crescita, introduced starting from July 1, 2020, the obligation for the Tax office to invite the taxpayer to the audit procedure before issuing notices of assessment.

On June 22, 2020, the Italian Tax Authority with the Circular no. 17/E provided clarifications on the new tax audit as per Article 5-ter of Legislative Decree no. 218/1997.

The audit procedure is aimed at settling the tax obligation before formal notification of a notice of assessment concerning direct and additional taxes, social contributions, withholding taxes, substitute taxes, IRAP, IVIE, IVAFE and VAT.

The rules are that the audit procedure is excluded for:

  1. partial assessments;
  2. summary assessments, those resulting from “studi di settore” and those for abusive conduct.

Concerning VAT, all partial assessments based on certain and direct elements that do not involve inductive reconstructions or the use of presumptions are excluded.

The audit procedure is excluded also if the Tax Authority has issued a copy of the audit report since the taxpayer can benefit from the benefit provided by Article 12, paragraph 7, of Law no. 212 /2000.

The invitation to the audit is also excluded in the other cases of participation of the taxpayer in the contradictory activities, before the issue of a notice of assessment.

Except for the cases described above, the Tax Office is authorized to issue the notice without respecting the obligation to previous tax audit only in cases of ” special urgency” or “well-founded danger for tax collection” as per  Article 5-ter, paragraphs 4 and 6, of Legislative Decree 218/1997.

Under Article 5-ter, paragraph 3, of Legislative Decree 218/1997, if the taxpayer does not accept the invitation and the claim in the audit report, the notice of assessment must be specifically justified.

Circular no. 17/E shows that breach of the obligation of tax audit causes the invalidity of the tax assessment if the taxpayer proves, in litigation, that the regular establishment of the previous audit would have led to a different tax measure.

The Decreto Crescita added paragraph 3-bis to article 5 ter of Legislative Decree no. 218/1997, which introduces the automatic extension by 120 days of the deadline for the notification of the tax assessment, if less than ninety days expire between the date of taxpayer’s appearance and the date of the end of the control activity as per articles 43 of Presidential Decree no. 600/1973 and 57 of Presidential Decree no. 633/1972.

 

Cecilia Breviglieri