The specific problem hindering the entry of these entities into the secondary market of tax credits is mainly represented by the risks related to the existence, effectiveness, and entitlement of these credits, and therefore their sequestrability or denial.
Among the amendments being approved to Decree-Law No. 11 of 2023, the obligation for the assignee to provide a suitable attestation (Articles 35 and 42 of Legislative Decree No. 231 of 2007) regarding the execution of all the checks required by anti-money laundering regulations in terms of reporting suspicious money laundering operations has been introduced.
The provision seems to embrace the jurisprudential elaboration adopted by the Court of Cassation (judgment No. 45558 of November 16, 2022), which crystallized the concept of “good faith” of the assignee in the acquisition of the credit.
Mds legal tax studies (Lawyer Andrea Mifsud) and Stufano Legal | Corporate | Tax (Lawyer Sebastiano Stufano) have formed a strategic partnership focused on the creation of an innovative professional model that involves various professionals (particularly finance professionals and specialists in corporate investigation and risk management).
Specifically, the team has developed a model for selecting tax credits based on specific checks that ensure their genuineness from both a subjective and objective perspective. These checks concern the assigning entity, the attesting entities, the anomaly indices provided by the Bank of Italy, and the requirements for the accrual and entitlement of the credit.
The need for such verifications is imposed by the legislation and the jurisprudential orientation of the Court of Cassation in order to prove the assignee’s good faith and the consequent integrity and full usability of the purchased tax credits.
During the conversion of Decree-Law No. 11/2023, approved by the Chamber of Deputies on April 4, 2023, with the final vote on the amendments, the legislature adopted the orientation of the Supreme Court of Cassation, as stated in judgment No. 45558 of November 16, 2022, regarding the good faith of the assignee of tax credits.
Article 121 of Decree-Law No. 34/2020 excludes the exercise of recovery actions by the Revenue Agency against the assignee if the purchaser of the tax credits did not participate in the violation committed by the original beneficiary of the deduction. In any case, the assignee can be subject to preventive seizure if they are in no way legitimized to hold and even use non-existent tax credits because they lack a legitimate original title that generated the credits subsequently transferred. This is consistent with Article 28-ter of Decree-Law No. 22/2022, which expressly indicates the seizure against the assignee.
However, the beneficiary of the credits and the supplier who applied the discount, as well as the assignee, remain jointly liable if they have participated in the violation of tax regulations.
From a tax perspective, the Revenue Agency or the Financial Guard, in tax assessments or in PVC (Prevention of Money Laundering and Terrorist Financing) documents, must provide evidence “that the taxpayer was aware, or should have been, using ordinary diligence due to their professional position, of the substantial nonexistence” of the operation from which the tax credit originated. Only in this case, the burden of proof will be on the taxpayer to demonstrate “that they have acted, in order not to be involved in an operation aimed at evading taxes, with the utmost diligence required of a prudent operator, according to criteria of reasonableness and proportionality in relation to the circumstances of the specific case” (Cass. 9721/2018; Cass. No. 9851/2018; Cass. No. 26464/2018).
The orientation of the Court of Cassation
With judgment No. 45558 of November 16, 2022, Section III of the Criminal Court of Cassation addresses the issue of the sequestration of tax credits in the case of investigations for fraud related to the Superbonus 110%.
Regardless of the contents of the “Relaunch Decree,” the obligations of prevention and counteraction provided for by anti-money laundering legislation always apply to the assignee receiving the Legislative Decree no. 231/2007.
The Court observes that in the case under consideration, there are many of the anomalies abstractly described in the aforementioned measures, and that in any case, regardless of the contents of the “Relaunch Decree,” the assignee should have nevertheless fulfilled the anti-money laundering obligations pursuant to Legislative Decree no. 231/2007 according to the UIF (Financial Intelligence Unit) guidelines, “by intensifying controls regarding requests for discounts on previously purchased credits,” thus carrying out preventive control activities rather than merely post-monetization of the assigned credits.
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In compliance with the orientation of the Supreme Court of Cassation (judgment No. 45558 of November 16, 2022), the legislator has introduced the obligation for the assignee to produce a certification that “certifies” the execution of anti-money laundering controls prior to the completion of the credit purchase transaction.
This certification must attest to the execution of appropriate “customer due diligence” controls, and in the case of a listed company or a company belonging to the group of a listed company that does not fall within the subjects obligated pursuant to Article 3 of Legislative Decree no. 231/2007 (in which case the controls are required by law since they are institutionally obligated to comply with anti-money laundering requirements regarding the reporting of suspicious money laundering operations), the certification must be issued by a statutory audit firm.
The issuance of the certification will be the final act in a thorough series of controls that must be carried out according to the provisions of the indices of anomalies provided by the Bank of Italy’s Decalogue (measure of November 10, 2020), specifically for the transfer of tax credits.
The provisions of the Bank of Italy require the execution of controls from both a subjective perspective (company, legal representative, partners, auditors, certifiers, financial statements, number of employees) and an objective perspective (formation of the credit, transfer operation, likelihood regarding the creation of the creditor position vis-à-vis the Tax Authority).
The proof of the execution of the controls will attest to the good faith of the assignee, protecting them from prejudicial consequences both from an administrative tax perspective and a criminal perspective, and also legitimizing the possession and utilization of the credits.
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