The substantial amendment to the maneuver (no less than fifteen paragraphs, as can be seen here) first signed by the Hon. Francesco Boccia goes under the name of web tax, even if it has very little to do with the web and it is not clear in what sense it defines a new tax. In summary, the amendment provides that multinationals (companies with consolidated revenues exceeding 1 billion euros) that sell goods or services in Italy for an amount exceeding 50 million euros can submit a ruling to the Revenue Agency to assess the existence or otherwise of the requisites that configure a permanent establishment, which is currently admitted only in very limited cases. If the Agency ascertains the existence of the permanent establishment, it also defines the sums due (paragraph 5).
If the company pays what is required by the Agency, the administrative sanctions are reduced by half (paragraph 6) and the crime of failure to submit the return is excluded (paragraph 7). In this case, pursuant to paragraph 9, the Agency communicates to the judicial authority the settlement of the tax debts. However, if the company does not accept the financial administration's assessment, the Agency can adopt an assessment notice, with full application of the sanctions, also in relation to the tax periods for which the terms of decadence. Paragraph 8 of the amendment, in the last sentence, provides, in fact, for an ad libitum derogation from the terms of forfeiture envisaged by current legislation. Therefore, if the administration were to believe that the permanent establishment existed even twenty years ago, it could request the payment of taxes, interest and penalties of twenty years ago!
At first glance there are two aspects that are perhaps positive and one that appears unacceptable. A first positive aspect is that throughout the amendment no reference is ever made to the web or its synonyms (bit, network, internet, etc.). After so much talk about web tax, a rule is presented that does not apply specifically to web companies, but to all large multi-localized companies that also sell in Italy. It is a positive fact in the sense that perhaps we are starting to realize that by now the whole economy is on the web and that, conceptually, there is nothing special with companies like Google or Facebook. Another probably positive aspect is the widening of the possibilities of resorting tointerpellation for the assessment of the permanent establishment. The point that is not understood is paragraph 8 because it constitutes a penalty, potentially very heavy, precisely to be paid by the companies that decide to contact the Revenue Agency. In short, a company that decides to collaborate risks much more than those who remain in the shadows. Probably, because of this paragraph, companies will be reluctant to use this new possibility of collaboration with the tax authorities.
Another critical point concerns the advantages mentioned above for companies that accept the tax administration's assessment. In particular, there is the advantage of the non-punishability of the crime of omitted declaration to a greater extent than that envisaged for the generality of taxpayers. Even today, in fact, the payment of the tax debt constitutes for all taxpayers a reason for the non-punishability of the crime of omitted declaration. However, today, in order for this cause to work, it is necessary that the payment of the sums due takes place within the term of the tax return for the following tax period. The Boccia amendment, on the other hand, does not set a deadline and therefore seems to recognize the cause of non-punishability even in the cases in which the payment of the amount due takes place in subsequent periods. This undoubtedly represents an incentive to collaborate, but it is not easy to explain why multinational companies should have privileged treatment compared to other taxpayers. Moreover, if this difference in treatment were eliminated, the incentive to collaborate would be practically eliminated and it would be even less clear how it can be said that the law produces additional revenue for the State.
Unless we believe that the oblique reference to the judicial authority contained in paragraph 9 intends to prefigure an extension by judicial means of the very concept of permanent establishment. But if this is the back thought, one cannot fail to observe that the concept of permanent establishment can only be changed by law. Furthermore, it is not clear how this rule, even more so if amended by the privilege granted by paragraph 7 to multinationals, can be of help to the magistrate who investigates cases in which the permanent establishment exists, but is not declared.
In short, beyond the proclamations, we are still very far from having found a national way to tax the giants of the web. The excuse is that the topic is objectively very complex.
