The EU Commission has filed the complaint, formulated by the Aidc (Italian Association of Chartered Accountants) and concerning sector studies for VAT purposes, whose current legislation is denounced (which, moreover, will be further tightened, in the new tax simplification decree, by combining the pecuniary sanction with the inclusion in the selective lists of the GdF).
For the Aidc, in fact, the tax regime is based on the articulation of incomprehensible statistical elaborations, and therefore not contestable by the taxpayer in the subsequent cross-examination. The latter (as also confirmed by the Cassation) instead of leading to an effective personalization of the revenues, aimed at really verifying the truthfulness of what was declared, it would lead directly to an agreement between the Agency and the tax payer. This agreement, which continues to be based on statistical processing data, provides for the payment by the taxpayer of an intermediate figure between the declared annual revenues and those statistically assumed: it is precisely this that is illegitimate at the European level.
The reasons for the filing of the complaint are the same as already expressed in July 2011, through a letter from the (VAT) Unit of the European Commission, which had responded to requests from the Aidc advising the institutions against starting a proceeding, deemed useless, against the Italian State.
In the letter, the Commission stated that the issues raised by the Aidc did not fall within the competence of the EU (since they relate to tax control and collection issues). He also underlined that there was already a sentence of the Supreme Court (n.26636/2009) in which the automatic application of sector studies was excluded. Finally, he recalled that the taxpayer did not lack the probative elements necessary to justify his position.
Obviously the Aidc has badly digested this decision, unanimously confirming the reasons for his disagreement with the legislation on sector studies. He also expressed his disapproval of the solution which the European institutions have reached, (a decision which in fact is not entirely convincing), also fearing the risk of an excessive leniency by the EU towards indebted countries in order to avoid, by contrasting their revenue, undermining their deficit reduction.
In fact, according to the Aidc, questions relating to sector studies directly affect the determination of the tax base (and therefore would fall within European competence), moreover with criteria that are in contrast with the VAT directive 2006/11/EC. Furthermore, even the Supreme Court (in its online report 94/2009) has noted how sector studies, precisely due to their complex statistical-mathematical nature, do not allow the taxpayer to provide any evidence to the contrary on their statistical correctness, considered by the Cassation itself to be strongly compromised at the root and unsuitable to relate to the concrete case.
The Aidc therefore raises the point on the conflict in which, on the other hand, the Italian rules would enter with the Community rules and on the concrete risk that these rules, albeit conflicting, remain, so to speak, "unpunished" in the event that the Italian tax judges , the first European natural judges, do not contrast them adequately.
