2 The formal finding art. 36-bis and 36 ter.
The formal finding is, as said, mainly reflected in merely a statement of the securities and is designed to verify the accuracy of the obligations in the statement to taxpayers. The formal control was introduced into Articles with tax. 36-bis and 36 ter of the Presidential Decree No. 600 of 1973.
In particular, the DL 241 N-1997, issued pursuant to the authorization contained in art. 3 of the Act of 23 December 1996, n. 662, has started a new reform to rationalize and modernize the management of the statements and the simplification of the obligations borne by the taxpayer. The achievement of these objectives was achieved with a restatement of the Articles. 36-bis and 36 - b, leading to a radical change in the institution of the "liquidation of the 'tax due according to the statement, which is currently governed by. 36-bis of Presidential Decree 600 of 1973. "
The audit consists of the following types of formal :
- control over the tax payment , contributions, premiums and reimbursement payable under the tax payers or substitute tax (770) . The rule governing this activity assessment is contained in Article 36 bis of Presidential Decree 600/1973, the deadline to bring the activities of formal control by the tax authorities is the beginning of the period in which the declaration relating to direct taxes and VAT for the following year;
- formal control real and right of the declarations submitted by taxpayers and tax substitutes. The rule governing this activity assessment is contained in article 36 ter of the Presidential Decree 600/1973, the deadline to bring the activities of formal control by the tax is 31 December of the second year following the submission of statement
The most significant aspect that emerges from a reading of the new rules is the independent legal position approved the settlement of tax, contributions and premiums owing, and the repayments due under the statement made by the taxpayer or by deputy tax.
liquidation of assets in application of Article art. 36-bis of Presidential Decree 600/1973 .
The liquidation of the tax due is a phase of self-control, taking, with the legislative amendments introduced, immediate external significance.
from amendments made to Article. 36-bis, the tax clearance must be done, as mentioned, through automated procedures, by the beginning of the period for submitting statements for the following year, based on the data and the elements can be derived directly from the statements made and those have dall'Anagrafe tax (paragraphs 1-2 of Article 36-bis). The drafting of Article 36-bis, and in particular on the results of surveillance made it possible to put an end to the many issues that have arisen in the past.
The new paragraph 3, in fact, provides that if the automatic controls were to emerge a different result than that stated, the outcome of the liquidation must be communicated to the taxpayer or withholding agent (to avoid the recurrence of errors and to allow the regularization of the formal aspects), and
Financial Administration for the possible acquisition of data, and are not considered in the settlement. The aspects of the content of Article 36-bis seem to meet the needs of a discipline more attentive to the guarantees of taxpayers by shifting the focus on the effects of the liquidation.
fact being reviewed in accordance with and for the purposes of paragraph 3, Article. 36-a, is aimed not only on the regularization of the formal aspects of the declaration, in order to prevent the taxpayers make the same mistakes in subsequent declarations, but also to inform the tax authorities of data and items not treated properly by itself, thus avoiding the emergence of contentious issues resolved immediately.
The Finance Ministry can not be limited to the detection of errors purely formal statement, but, rather, must result in a greater tax burden to the taxpayer, or rectify the claim requested a refund. The outcome of the liquidation will be the recognition of a higher tax that became due and payable by the exercise of control phase, will only be levied.
From the content of paragraph 2, Article. 36-bis, the Administration will proceed with the correction of clerical errors and calculation made by the taxpayer in determining taxable income, taxes, contributions and premiums, and in the apportionment of surplus tax, contributions and premiums resulting from statements, the reductions in tax allowances, deductions from income, tax credits set to an extent greater than that required by law or not paid on the basis of the data and derived from the statements, the control of the match between the amounts declared and payments, as well as withholding taxes as withholding tax.
The enactment of a decree law has regulated the manner and timing of collection of amounts due to the tax authorities as a result of automatic controls.
In particular the outcome of the clearance will, therefore, made public by issuing a warning notice containing details of the formal aspects curable and the reasons for liquidation, in the case of a higher tax. In the same opinion, the Directors shall determine, in addition, a period of 30 days that will allow the taxpayer to rectify the statement made, or even determine the interruption of the proceedings against him or modification the results already achieved through the presentation of additional data and evidence. Within that period of thirty days, the taxpayer will be the amount required, as indicated in the notice by paying the reduced penalty of 10% (ie 1 / 3 of 30%), in addition to payment of interest until the last day of the month prior to the processing of the communication.
Article 36-bis, however, nor has anything in relation to the content of communication, nor specify the behavior that the Office should take. The practice followed by the tax is - in the absence of further clarification by the taxpayer or the payment on a short part of the same - the role of the membership, by the Office of the additional taxes, penalties and interest resulting from the liquidation of the declaration, after which the collection agent shall notify the folder on Dec. 31 for payment within the third year following the submission of the declaration.
Inspections formal declaration under Article art. 36-ter of Decree 600/1973 .
The audit's formal statement, will tend to verify the proper assessment of taxes, deductions, contributions or bonuses declared, without going into the actual identification of the conditions of taxation, but at the same time is given the opportunity to be able to acquire even more elements derived from the contents of the declaration submitted by other parties or lists provided by certain institutions, or even an examination of other required documents to the taxpayer himself. Although it was expected a greater degree of control, this activity is dependent on the formal control of the declaration did not result in such limited action for a declaration that the tax offices may make later, in fact, paragraph 2 of the new art. 36-b has "Without prejudice of the investigations under Articles 37 and following" the Presidential Decree No 600 of 73 ".
The formal control of the declaration, as opposed to settlement activity, it will focus not on the totality of the statements made, but only with respect to the taxpayer identified on the basis of selection criteria established by the Ministry of Finance.
The deadline to bring the activities of formal control by the tax authorities is, as said, on December 31 of the second year following the submission of the declaration.
Paragraph 2 of art. 36-b has The offices of revenue shall: a) exclude all or part of the deduction of withholding taxes resulting from the statements of not withholding, the communications referred to in Article 20, subparagraph the Decree of the President of the Republic, September 29, 1973, No 605, by the certifications required for taxpayers or withholding resulting in far lower than indicated in the declarations of the taxpayers themselves; b) exclude all or part of the tax deductions not paid according to the documents required for taxpayers or to the list in art. 78, paragraph 25, the Law of 30 December 1990 No 413; c) exclude all or part of the deductions from income not paid according to the documents required for taxpayers or to the lists mentioned in the letter b); d) determine the tax credits payable according to data from the statements and documents required for taxpayers, and ) liquidate the largest personal income tax and more taxpayers due on the total of income from certificates more declarations under Article . 1, paragraph 4, letter d), presented for the same year by the taxpayer; f) correct clerical errors and calculation committed in the statements of their representatives.
addition paragraph 3 of that article provides that - for the purposes of paragraphs 1 and 2 - the taxpayer or withholding agent is requested, by phone or in writing or electronically, to provide clarification regarding the data contained in the declaration and to make or send payment receipts and other documents were not attached to the declaration or different from the information provided by third parties.
also comment in paragraph 4 of Article imposes an obligation of the Administration to explain the reasons for the adjustment made in a special alert to be notified to the taxpayer. The obligation to state reasons is certainly an important guarantee for the taxpayer, who, having knowledge of the reasons may be to regulate the content of the statement in reply, either exercise their rights of defense in litigation, or even stop the procedure and reporting data elements not reported or wrongly assessed in the control phase, because in case of an error by the tax authorities, the same will eventually exercise its power of self-defense by any waiver of taxation if it is established the illegality of the act or imposition.
The taxpayer has the opportunity to rectify the most debt issued in him, by paying the amounts due within the next 30 days of receipt of the communication, thereby resulting in the payment of the penalty reduced by 20% (ie 2 / 3 of 305), in addition to payment of interest until the last day of month prior to the processing of communication .
In the absence of further clarification by the taxpayer or the payment on a short part of it, need to enroll in part, by the Office of the additional taxes, penalties and interest resulting from the liquidation declaration, after which the collection agent shall notify the relevant payment forms by 31 December of the fourth year following the year in which the declaration.
The broad review of Articles. 36-bis and 36 ter can detect that the clearance of the declaration and the stage of formal control stages are independent and distinct from one another. Thus, acquisition of data and evidence improperly considered in the liquidation under subparagraph 3 of Article 36-bis, may also lead to
different activities of control under Article 36-ter, or follow the following control activities or investigation under Articles. 37 and following of Decree No. 600/1973.
