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Subject: Regularization of tax credits obtained for R&D activities (conception and prototyping activities) - State of the art and request for feedback (answer by 9 May) Premise A few months later we resume the issue concerning any disputes that the company could have or has in place with the Revenue Agency and the possibility of regularizing them through the payment of disputed research and development credits. We refer in particular to the cases that emerged following the resolution of the Revenue Agency n. 41/E of 2022 for the R&D part concerning design and prototyping activities. As known, Confindustria FEDERORAFI, with its associated Territorial companies, intervened and thanks to Confindustria itself, a deferment of terms was obtained last year. Furthermore, further actions are still underway to obtain an interpretative or normative solution (with retroactive effect) in order to clarify the eligibility of the activities both for product, process and service as well as for research and aesthetic design. But nothing is certain and the deadlines are approaching. For this reason, with this document we summarize the state of the art of spontaneous fulfilments for the correction of situations deemed not in line with the regulatory provisions and at the same time, we stimulate an investigation in order to be able to understand the extent of the problem at all within the sector. We therefore ask the companies interested in the matter to report their position to us possibly by 9 May next. State of art During the annual meeting with the specialized press - Telefisco 2023 - the Revenue Agency, answering a question posed, acknowledging the reference regulatory provision - article 5, paragraph 12, Legislative Decree no. 146/2021, conv. with mod. by Law 215/2021 - which does not identify a specific discipline for the payment of credits for research and development disputed with reports of findings (PVC) delivered after 22 October 2021, has recognized the possibility of carrying out a partial amnesty of the findings indicated in the same PVCs, on the basis of autonomous assessments by the tax payer. Naturally, the choices made will subsequently be subject to control by the competent offices.

 

As is known, article 5, paragraph 7, of Legislative Decree 146/2021, allows companies that on 22 October 2021 - the date of entry into force of the same Legislative Decree - have used the tax credit for investments in research and development activities as compensation, referred to in Article 3 of Legislative Decree 145/2013, accrued starting from the tax period following the one in progress on 31 December 2014 and up to the tax period in progress on 31 December 2019 - to repay the amount of the credit used, without applying penalties and interest, under the conditions and within the terms established by law. Therefore, the company can choose between different procedures to remedy any undue compensation of Research & Development tax credits, regardless of the novelty and creativity requirements of the projects set out in the Frascati OECD Manual (Legislative Decree 146/2021; law 197/ 2022; Legislative Decree 34/2023). In relation to the decision to proceed or not with the so-called spontaneous regularization, in the event that there is a formal assessment report (PVC), or an invitation to compliance, it is necessary to consider some variables such as: deciding whether to remedy, as seen, even partially the investments made, what are the concrete benefits of the amnesty , that there are repercussions on the criminal side (article 10-quater, Legislative Decree 74/2000), the possible fatal effect of the spontaneous amnesty and, last but not least, any effects on the possibility of participating in public tenders.

 

Let's look at some possible cases. Spontaneous spill In the event of spontaneous transfer (article 5, paragraphs 7 and following, Legislative Decree 146/2021), admissible only if there are no impediments, for example: the notification of a recovery deed that has become definitive, or fraudulent conduct, or even non-existent transactions, it is permitted to reverse all or part of the offset R&D credits. In this case, the application must be submitted by 30 November 2023, with the balance being paid in three equal installments by 16 December 2023, 16 December 2024 and 16 December 2025. Penalties and interest are not due, the legal installment interest remains due . This procedure, however, does not have a grave character, in fact the Agency may not validate the definition. However, the fact remains that the transfer represents a special cause of non-punishment of the crime of undue compensation (provision number 188987/2022). Special provision In the event of special repentance (as recently introduced by article 1, implementing paragraphs 174, law 197/2022), the taxpayer, provided that the alleged violations are not contested with liquidation deeds, notices of assessment and/or recovery, can remove all or part of the irregularities by 30 September 2023, restoring the previous situation also in the declaration (ru framework).

 

However, the special repentance is only followed by the benefit of the reduction to 1/18 of the statutory sanction - ranging from 30% to 100% of the credit - and legal interest is due; it is possible to pay by installments up to eight installments of the same amount, to be paid by 20 December 2024 at the latest. Also in this case, the regularization does not generate definitive or grave effects but regenerates the power of assessment in relation to what has been remedied, along the lines of ordinary industrious repentance. Lastly, this amnesty - only by virtue of the recent article 23 of Legislative Decree 34/2023 - constitutes a special cause of non-punishment in the event of criminal proceedings, if the related balance is paid in full before the appeal sentence, with a longer term of the provisions of article 13 of Legislative Decree 74/2000. The other cases Alternatively, in the presence of a PVC delivered by 31 March 2023, the taxpayer should be given the possibility, due to the provisions referred to in the so-called "tax truce", to adhere to the report that contains findings and/or reports regarding R&D tax credits (article 1, paragraphs 179 and following, law 197/2022). Also in this case, the penalty is reduced to 1/18, without prejudice to the interest due, with installments of the debt up to twenty equal quarterly installments. Since the enhanced adhesion follows the procedure provided for by Legislative Decree 218/1997, the company definitively closes the offense and can benefit from the special cause of non-punishment under the same conditions provided for by the aforementioned article 23 of Legislative Decree number 34/2023. Report As indicated in the introduction, by 9 May next, let us know if your company has been notified by the Revenue Agency for the amnesty procedure through the reversal of the tax credit. The text is available in pdf format by clicking here: 2023_05_02 Regularization of tax credits obtained for research and development activities We thank you and remain at your disposal.