Judgment No. 23273 of 2024: VAT Refund and Business Cessation

The recent judgment No. 23273 of August 28, 2024, issued by the Court of Cassation, offers important clarification regarding the refund of VAT credits in the event of effective business cessation. The central issue concerns the legitimacy of the tax return filed by the bankruptcy trustee and the implications related to the statute of limitations for the right to a refund.

Regulatory Context

According to Article 30, paragraph 2, of Presidential Decree No. 633 of 1972, the right to a refund of VAT excess arises at the time of business cessation. In this specific case, the Court emphasized that the declaration made by the bankruptcy trustee, aimed at offsetting or deduction, represents a clear intention to maintain the VAT credit and to request its refund.

• Art. 30, para. 2, Presidential Decree No. 633/1972: establishes the right to a refund of VAT excess.
• Ordinary ten-year statute of limitations: the time within which the refund can be requested.
• Role of the bankruptcy trustee: fundamental in managing VAT credits during bankruptcy.

Analysis of the Judgment

Refund of VAT credits for effective business cessation - Tax return by the bankruptcy trustee for offsetting purposes - Unequivocal intention not to lose the credit - Suitability - Ten-year statute of limitations. The right to a refund of VAT excess due to business cessation, pursuant to Art. 30, para. 2, of Presidential Decree No. 633 of 1972, arises at the time of the effective cessation thereof, for which the prior inclusion in the tax return, for offsetting or deduction purposes, by the bankruptcy trustee, demonstrates the unequivocal intention to obtain the refund of the credit, subject to the ordinary ten-year statute of limitations.

The Court of Cassation, examining the case at hand, highlighted how the declaration filed by the bankruptcy trustee was not only suitable for demonstrating the intention to request the refund of the credit but was also essential to avoid losing the right itself. This aspect is crucial, as current legislation provides that the right to a refund is subject to an ordinary ten-year statute of limitations, which implies that proper management of the tax return is vital to avoid nullifying the accumulated VAT credit.

Conclusions

In conclusion, judgment No. 23273 of 2024 represents an important precedent in the matter of VAT refunds and credit management during bankruptcy proceedings. It clearly states that a well-considered and timely declaration by the bankruptcy trustee can secure the right to a refund, thereby protecting the debtor's interests and facilitating the proper conduct of tax operations. It is essential for legal and tax professionals to be aware of these guidelines to adequately assist their clients in situations of corporate crisis.