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Information on the news regarding self-defense and on how the taxpayer can submit the request.

The art. 1, paragraph 1, letter m) of the Legislative Decree. 30.12.2023 n. 219, introduced within the scope of the Statute of taxpayers' rights (Law 27 July 2000 n. 212) important innovations regarding the exercise of the power of tax self-defense, through the new regulations referred to in articles 10-quater and 10-quinquies of the aforementioned Statute.

In particular, the tax legislator, by repealing the previous regulations, has established a distinct and express regulation of the hypotheses of tax self-protection, providing for two forms of self-protection: the mandatory one referred to in the art. 10-quater and the optional one referred to in art. 10-quinquies of the Taxpayer's Rights Statute.

Mandatory self-defense 

With the new article 10-quater of the Statute of Taxpayer's Rights, the tax legislator prescribes the obligation for the Financial Administration to annul the tax deeds, in whole or in part, even without a prior request from the taxpayer and also while proceedings are pending or in the presence of already definitive deeds, where there are cases of manifest illegitimacy of the deed issued and one of the defects strictly foreseen by the first paragraph of the aforementioned art. 10-quater, i.e. in the cases of:

1. error of person or calculation;
2. error on the identification of the tax;
3. material error by the taxpayer, easily recognizable by the Tax Agency;
4. error on the tax basis;
5. failure to take into account regularly made tax payments;
6. lack of documentation subsequently remedied no later than the deadlines, where foreseen under penalty of forfeiture.

The aforementioned obligation of self-defense does not exist, however, in the event of a favorable ruling for the financial administration, which becomes final, or in the event that one year has elapsed, due to failure to appeal, from the day of actual finality of the flawed act, without prejudice to the taxpayer's right to present, even after the expiry of the aforementioned annual deadline, an optional self-defense request. In cases of mandatory self-defense at the request of the taxpayer, the Financial Administration is required to respond to the request within 90 days of its receipt. The legislator has also provided for the possibility for the taxpayer to challenge the express or tacit refusal of the Financial Administration on the request for mandatory self-defense.

Optional self-defense 

With the new article 10-quinquies of the Statute of Taxpayers' Rights, the tax legislator provides, on the other hand, the regulation of the so-called optional self-defense, providing that the Financial Administration, if the illegitimacy of the tax act is not manifest and, in any case, none of the defects strictly provided for in the first paragraph of the article exist 10-quater, may, in any case, cancel in whole or in part the tax deed issued, even without a request from a party, where it recognizes the illegitimacy or unfoundedness of the deed or of the tax imposed, even while a judgment is pending or in the case of deeds which are already definitive.

The optional self-defense, essentially, representing a power that can be exercised by the Financial Administration on the basis of discretionary assessments, is not considered as a tool for protecting the taxpayer. The legislator has also provided for the possibility for the taxpayer to impreject the Financial Administration's refusal on the request for optional self-defense, only in cases of express refusal.

How to submit the request for self-defense

As also prescribed in Circular 21/E issued by the Financial Administration on 07.11.2024, the request for self-defense must be addressed to the Office that issued the document whose cancellation is requested. The request must comprehensively represent all the elements on which the request for self-defense is based and must be accompanied by all the documentation. For the presentation, tools must be used to certify the sending by the legitimated subject through, for example, the use of telematic services, SPID, CIE or CNS, or via certified e-mail or alternatively by hand-delivering the application with physical access to the counter.