Facilitated settlement of tax disputes, no definability for social security contributions – Fiscal Focus

The Law of 29 December 2022, n. 197 (Budget Law 2023), in article 1, paragraphs from 186 to 205, provides for a new edition of the simplified definition of tax disputes.

In particular, this institute will be applicable to disputes pending as of 1 January 2023 in every state and level of the proceedings, brought against the Revenue Agency, the Customs and Monopolies Agency and the territorial entities that will adhere to it by 31 March 2023.

In essence, for the purpose of admissibility of the facilitated definition, specifically, a requirement of a subjective nature is necessary: ​​paragraph 186 of law 197/2022 in fact establishes that the definition is applicable only if the judgment involves the Revenue Agency or the Customs and Monopolies Agency or the territorial entities that will decide pro tempore to join the institute.

And indeed, to this end, the status of procedural party of the aforementioned bodies will acquire importance, which can be ascertained by looking at whether this role is covered by the Revenue Agency or by the Customs and Monopolies Agency (i.e. by local authorities) as of 1 January 2023, date of entry into force of the law.

On closer inspection, not only the proceedings instituted directly (by notification of the appeal) against the subjects specified above will be definable, but also those in which the same entities have intervened, because called into question or voluntarily, within the same date.

In other words, it is precisely the regulatory provisions that clearly outline the scope of application of the measure in question where they expressly establish that only disputes attributed to the tax jurisdiction in which the specific subjects indicated above are party are definable.

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Conversely, this entails the impossibility of defining any disputes which, on the contrary, involve subjects other than those previously indicated or which do not fall within the jurisdiction of the tax courts, can be settled on a simplified basis.

This circumstance, on closer inspection, is not without consequences, in fact, in the event of an assessment notice in which higher revenues or fees are contested, typically, in addition to the higher direct taxes, the taxpayer is also required to pay higher contributions due to INPS for effect of the reassessment of income.

However, it appears clear that, given the specific subjective foreclosure envisaged by the law, this implies the non-definability of the social security aspect of any deed (notice of assessment for example) which is the subject of the dispute that is intended to be defined.

And this also in consideration of the absorbing circumstance that the aspect relating to the higher social security contributions is not left to the tax jurisdiction.

On the subject, the Court of Cassation did not fail to specify that the ordinary judge (Civil Cassation, SS.UU., ordinance 18/03/2010 n. ° 6539).

Even the documents of practice testify in favor of this orientation (see Circular INPS Circular No. 140 of 02.08.2016).

This implies, in other words, that if the taxpayer chooses to adhere to the facilitated settlement of tax disputes, he will be able to settle the dispute exclusively with reference to taxes, while for INPS purposes no settlement will intervene, given that the law provides nothing in this regard.

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However, it should be recalled that following the dispute, the judge may cancel the notice, or possibly redefine the deed, with effects also on the social security claim.

Therefore, should the taxpayer decide to settle the tax dispute through the institution in question, he will not see the contribution burden disappear but only income taxes, thus remaining required to pay the amount requested in terms of social security contributions.

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