The 2024 Budget Law Prohibition On Horizontal Offsetting If There Are Overdue Roles Exceeding € 100,000.00

By adding the new paragraph 49-quinquies into Article 37 of Law Decree no. 223/2006, Article 1, paragraph 94 of Law no. 213/2023 (2024 Budget Law) introduced a prohibition on credit’ offset in case of tax assessment notices exceeding € 100,000.00. The new rule will be effective from July 1st2024.

In particular, the provision establishes that the right to offset credits (set forth in Article 17 of Legislative Decree no. 241 of July 9th, 1997) is excluded for taxpayers who have tax notices or enforceable tax assessment assigned to the “Agente della Riscossione” (the Italian Enforcement branch of the Revenue Agency) for (i) amounts exceeding € 100,000.00, for which the payment terms have expired and (ii) payments are still due or there are no suspension measures in place.

Scope of the prohibition

The prohibition only applies in case of expired tax assessments with no suspension measures in place or executive tax assessment assigned to to the “Agente della Riscossione” for amounts exceeding € 100,000.00.

This prohibition will not be applicable to formal controls (so called “Avvisi bonari”) or liquidation notices or

assessments notices which are not yet enforceable (which implies that they are yet to be  notified).

The quantitative limit of €100,000.00 has to be considered from an overall perspective, so a role of €50,000.00 and an executive assessment notice of €60,000.00 legitimise the prohibition.

One aspect that raises particular doubts is that, in accordance with the Article 1 paragraph 94 of Law no. 213/2023, the prohibition applies if payments are still due and, in general, “ceases to apply after the complete removal of the alleged violations“.

Therefore, it seems that the payment of the first instalment of an repayment plan (Article 19 of Decree of the President of the Italian Republic no. 602/73) is not subject to the prohibition to offset. This is an issue on which the legislator should provide clarifications.

Finally, the new rule expressly mentions “imposte erariali”, thus including, primarily, charges related to income tax, to the VAT, to the registration tax, to the inheritance and donations tax etc. Other credits, such as the RU credits (e.g. research and development bonus), local taxes and pension contributions (INPS) are not considered for the purposes of €100,000.00 limit.