Circular no. 18 / E of 28 April 2015, the Inland Revenue has addressed the issue of the declaration of unconstitutionality recently enacted by the Constitutional Court with regard to the additional IRES applicable to companies of significant size operating in the petroleum and energy, also called “Robin Hood Tax” or “RHT”, introduced by art. 81, paragraphs 16, 17 and 18 of Decree Law n. 112/2008, with amendments, by Law no. 133/2008.
The additional, recently increased to 10.5%, was the application if, in the tax year preceding the reference year, the company (in the energy sector or oil) had achieved revenues of more than EUR 3 million and a taxable income in excess of € 300,000, in order to affect the achievement of “super-profits” by any given business.
The Constitutional Court, with judgment no. 10 of 11 February 2015, ruled unconstitutional the additional assumption that the same constitutes a real increase of the IRES, in violation of the constitutional principles of equality and ability to pay.
In this Circular argument, the Inland Revenue has noted at the outset that the Constitutional Judge intended to effect the effects of the declaration of unconstitutionality of the day following the publication of the judgment in the Official Gazette, ie from 12 February 2015.
Consequently, taxpayers with tax period coincides with the calendar year will no longer be subject to the RHT only from the tax year 2015, while those with tax period not coinciding with the calendar year there will be more subject to As from fiscal year in progress as at 12 February 2015.
Therefore remain firm deadlines ordinary (June 16, 2015) the obligations of payment of the balance of the RHT for tax year 2014.
The Inland Revenue has also made clear that:
1) any excess RHT they find use in the balance for 2014 can only be used in “horizontal offsetting”, to be performed with the limits and procedures provided by law, without the possibility of vertical offset with the IRES. Alternatively, the same surplus will be used to refund asking or selling them to the parent for the purposes of compensation with the IRES from this requirement;
2) past losses are significant in determining the tax base of the RHT regardless of the period they are accrued, and then even if they date from tax years prior to the introduction of the RHT;
3) to check the parameter of taxable income greater than 300,000 EUR, reference should be made to the taxable income net of accumulated losses, available and countervailable under Article. 84 of the Income Tax Code.