When it comes to tax deductions, you must always be very careful and in the case of a 110% superbonus you need even more. With tax deductions of 110%, the Relaunch Decree added an additional control system to the one already existing by the Revenue Agency and the Unified Building Desk.
Superbonus 110%: l’procedural path
In this study we will try to clarify what the controls of the main bodies involved consist of and the effects on the tax deduction in case of errors or violations. To do this we will follow the classic control process taking as a reference one of the most used interventions in the 110% superbonus: thermal insulation coating.
Leaving aside the initial audit phase, the verification of the conditions, the requests for quotations, … we start directly from the design phase and the construction process. The art. 119, paragraph 13-ter of Legislative Decree no. 34/2020 (Relaunch Decree) provides that all superbonus interventions (eco, earthquake, driving and driving), which do not provide for the demolition and reconstruction of the building, must be approved by submitting CILAS to the Unified Building Office (SUE) (the Notice of Commencement of Works Assessed for superbonus interventions, prepared by the Ministry of Public Administration).
The controls of the SUE
The first of the bodies in charge of control will therefore be the SUE. Considering that the causes for forfeiture of the tax benefits provided for in art. 49 of Presidential Decree 380 of 2001 (Consolidated Building Act), the presence of any building abuses will not affect the use of the 110% superbonus.
But beware, paragraph 13-ter does not say that there are no longer causes for forfeiture, but defines new ones, namely:
- failure to present the CILA;
- interventions carried out in deviation from CILA;
- absence of the attestation of the details of the qualification that provided for the construction of the property subject to intervention or of the provision that allowed the legitimacy or of the attestation that the construction was completed on a date prior to 1 September 1967;
- non-correspondence to the truth of the certifications provided for eco and seismabonus (Article 119, paragraph 14 of the Relaunch Decree).
The SUE, once verified the presence of one of the causes of forfeiture, pursuant to art. 49, paragraph 2 of the Consolidated Building Act, will communicate it to the financial administration (the Revenue Agency).
The controls of Aeneas
In parallel with the controls of the SUE, the supervisory powers of Enea are activated, provided for directly by the MiSE Decree of 6 August 2020 containing “Requirements for certification for access to tax deductions for the energy requalification of buildings – cd. Ecobonus“(the so-called Sworn Declaration).
We remind you that in the case of a 110% eco-bonus (such as the one we are talking about), the technician must file the required technical asseveration at the Enea telematic platform, together with:
- the declaration with which the technician specifies that he wishes to receive any communication with legal value to a specific certified e-mail address;
- the declaration that, on the date of submission of the sworn statement, the ceiling of the attached policy is adequate to the number of statements or sworn statements issued and to the amounts of the interventions covered by the aforementioned sworn statements or certifications;
- copy of the insurance policy;
- copy of the identification document.
On this information, Enea carries out an automatic check in which it verifies:
- that the beneficiary falls within those foreseen and that the foreseen conditions are respected (max 2 ui);
- that the technical data declared in the form referred to in annex D of the eco-bonus requirements decree guarantee:
- the compliance of the interventions with the requirements referred to in the same decree;
- that the type of building falls within those eligible pursuant to art. 119 of the relaunch decree;
- that any towed interventions (other than those on the common parts and for solar shading) are carried out jointly with the towing ones;
- the adequacy of the same interventions in compliance with the costs envisaged by the Ecobonus Requirements Decree;
- that the certification is regularly dated, signed and stamped by the qualified technician;
- that in the sworn statement there is a reference to articles 47, 75 and 76 of the decree of the President of the Republic of 28 December 2000, n. 445.
ENEA, upon positive outcome of the verification, issues the electronic receipt, including the identification code of the application.
The Sworn Declaration provided for Enea to carry out a “sweep” check on the technical sworn statements relating to construction works started before July 1, 2020. For all works started after this date, Enea will carry out a “documentary” sample check. on a minimum of 5% of the sworn statements filed annually. On 10% of the requests submitted to documentary control, Enea will then carry out a further on-site check.
Controls by the Revenue Agency
The Revenue Agency proceeds with the documentary verification of the existence of the conditions that give the right to the deduction. If the non-integration, even partial, of the requirements that give the right to the tax deduction is ascertained, the Agency will recover the amount corresponding to the deduction not due to the subject who exercised the option, plus interest and sanctions. Therefore, the beneficiaries of the deduction are responsible, without prejudice to the joint and several liability of the supplier who applied the discount and the transferees if it is ascertained that they participate in the violation.
Controls by the Revenue Agency can be carried out within the terms provided for by art. 43 of Presidential Decree 600/1973 and article 27, paragraphs 16 to 20, of Legislative Decree no. 185/2008 (converted into Law no. 2/2009). Let’s try to clarify what it means and by when it will be possible to check the Revenue Agency.
The assessment notices must be notified, under penalty of forfeiture, by 31 December of fifth successive year to the one in which the declaration was presented. In cases of non-submission of the declaration or submission of a null declaration, the assessment notice can be notified by 31 December of seventh successive year to the one in which the declaration should have been presented.
In the event of an offense of undue compensation (Article 10-quater of Legislative Decree no. 74/2000), the assessment must be notified, under penalty of forfeiture, by 31 December of theeighth year following to that of its use.
If the non-existence, even partial, of the requisites giving the right to the tax deduction is ascertained, the Revenue Agency will recover the amount corresponding to the deduction not due to the subject who exercised the option, increased by the interests.
The DL n. 77/2021 (Simplification Decree-bis) has inserted within art. 119 of the Relaunch Decree, paragraph 5-bis which states:
Purely formal violations that do not prejudice the exercise of control actions do not lead to the forfeiture of the tax concessions limited to the irregularity or omission found. In the event that the violations found in the context of controls by the competent authorities are relevant for the purposes of disbursement of the incentives, the forfeiture of the benefit is limited to the single intervention subject to irregularity or omission.
Without prejudice to the application of criminal sanctions where the fact constitutes a crime, the Directorate General for Energy Supply, Efficiency and Competitiveness of the Ministry of Economic Development imposes an administrative fine of € 2,000 on subjects who issue certificates and unfaithful sworn statements. 15,000 euros for each unfaithful attestation made.
If the non-existence, even partial, of the requisites that give the right to the tax deduction is ascertained, the Revenue Agency will recover the amount corresponding to the deduction not due to the beneficiaries. The amount referred to in the previous period is increased by interest for delayed registration in the role (Article 20 of Presidential Decree 602/1973) and penalties for delayed or omitted direct payments and other violations regarding compensation (Article 13 of Legislative Decree No. Lgs. N. 471/1997).