Sommario
New revenue calculation for shell companies
Shell companies, also known as non-operating companies, are legal entities that do not carry out an actual business activity. Their regulation is established by Law No. 724 of 23 December 1994.
A company is considered a “shell company” in two main cases:
- Failure to pass the operativeness test: which compares the company’s actual revenues with the “theoretical” revenues (Article 30(1) of Law No. 724/1994).
- Systematic loss situation: when the company is loss-making for five consecutive tax periods, or when it is loss-making for four periods and in the fifth it does not reach the minimum income established for shell companies, calculated pursuant to Article 30(3).
Operativeness test:
To ascertain a company’s operations, actual revenues are compared with “theoretical”revenues.
- Actual revenues: are calculated as the average of the values for revenues, increases in inventories and non-extraordinary income from the Profit and Loss Account for the current and two previous years.
- “Theoretical” revenues: these are determined by applying specific percentages to certain balance sheet items (equity investments, securities, financial receivables, real estate and other fixed assets). Also in this case, the arithmetic average of the values of the current and two previous years is considered.
Legislative Decree No. 192/2024 changed the percentages to be applied to certain categories of assets when calculating deemed revenues. The new rates will apply as of the tax period following the one in progress on 31 December 2023 (i.e., as of 2024 for companies with a financial year coinciding with the calendar year).
VAT refunds and VAT receivable audit
In order to obtain VAT refunds, both annual and quarterly, in excess of EUR 30,000, it is necessary to undergo a VAT receivable audit.
It should be noted that the obligation to endorse (or to submit an alternative endorsement) is strictly linked to the use of the VAT credit, and not to the total amount of the credit itself.
Consequently, the threshold of EUR 30,000 must be calculated separately for offsets and for refund claims.
Example:
Total VAT receivable of €31,000, of which €5,000 used against other tax payables and €26,000 claimed in a reimbursement request
In this specific case, it is not necessary to apply for a VAT receivable audit, even if the sum of the two portions of VAT receivable (5,000 + 26,000 = 31,000 euro) exceeds the 30,000 euro threshold in total. This is because neither of the two uses of the credit (offsetting and reimbursement) individually exceeds the threshold.
Certificazione Unica redemption
Penalties relating to Certificazione Unica (i.e. withholding agents’ tax reports) provide that late filing, or the sending of reports to correct errors, entails a penalty of €100 for each individual certification (Article 4, paragraph 6-quinies of Presidential Decree No. 322/1998).
In the case of several infringements, the accumulation of penalties provided for in Article 12 of Legislative Decree No. 472/1997 cannot be applied. The total penalty per withholding agent may not, however, exceed the amount of €50,000.
| Violation | Sanction |
|---|---|
| Certificazione Unica omitted, late or incorrect | EUR 100 per event (maximum EUR 50,000 per withholding agent) |
| Incorrect filing of the form remedied within 5 days of the deadline | No penalty |
| Filing of the form within 60 days of the deadline | Reduction to one third (EUR 33.33) per CU (maximum EUR 20,000 per withholding agent) |
Legislative Decree No. 87/2024, in accordance with Article 20 of Law No. 111/2023, has introduced significant changes to the tax penalty system, with a major impact also on the discipline of the voluntary repentance, entailing a significant reduction in the amount of the penalties – especially if the Certificazione Unica is submitted within 60 days of the due date.
In summary:
- Filing within 60 days: the penalty is reduced to 1/3, corresponding to EUR 33.33.
- A reminder within 90 days: the penalty is further reduced to 1/9, bringing the final amount to EUR 3.70.
Therefore, promptness in correcting any errors or omissions allows for a considerable reduction in the penalties applied.