The violation of the obligation to submit the IMU return doesn’t have an instantaneous nature: the consequences for the sanctioning power of the Municipal Authority

Civil High Court, Section V, order no. 8199 dated March 24, 2021.

The obligation to report the possession of real estate properties in ICI return or to declare changes on real estate properties already reported for ICI purposes “doesn’t cease at the expiry of the term set by the legislator regarding the beginning of the possession”, but it “remains until the declaration (or complaint) is submitted”, determining, for each tax year, an autonomous violation punishable pursuant to art. 14, paragraph 1 of Legislative Decree 504 of 1992.

This principle, affirmed by the Supreme Court regarding ICI (former Municipal Property Tax) with its order no. 8199 dated March 24, 2021, must be considered equally applicable to IMU (current Municipal Property Tax) as well as for other local taxes.

The judges of legitimacy point out that the violation of the obligation to report possession of real estate properties in ICI return does not have an instantaneous nature,  since it does not end sic et simpliciter with the expiry of the first term dictated by the legislator, i.e. for ICI purposes the submission of the tax return of  the year in which ownership of the property  began, while for IMU purposes the 30 June of the following year in which ownership of the property began or in which took places relevant changes that influence the tax purposes.

Indeed, given the fact that the ICI/IMU return has unlimited validity, and remains effective for all the years following the one in which it is submitted,  except in case of changes that affect the amount of tax due, it seems logical to reach the conclusion that, where the return is omitted in relation to one tax year, the obligation to submit the IMU return does not cease to apply to the following years since the effect of the so called “unlimited validity” has not been achieved. Therefore, until the ICI/IMU return is submitted, the penalty will affect each tax year in which the return has been omitted.

Without prejudice to the fact that the taxpayer’s omission must be punished for all the years in which the omission lasts, it must be considered that the “continuation rule”, as set out in Article 12, paragraph 5 and paragraph 6 of Legislative Decree no. 472/97, also applies to ICI, and consequently to the rest of the local taxes (as also stated in Civil High Court, order no. 11612/2020).

Therefore, since violations of the same nature are repeated over the years, it must be applied the basic sanction increased by half to three times, until the violation is established.

It should be noted, however, that the mechanism of legal cumulation, involving the imposition of a single penalty instead of the sum of several penalties for each omission committed, can only be applied if it is more favourable for the taxpayer than the “material cumulation” of penalties.

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