VAT and Consortia: The Court of Cassation Redefines Mandate Without Representation with Order No. 16654 of 2025

The Italian tax landscape is constantly subject to jurisprudential interpretations and clarifications that can have a significant impact on business practices. A recent intervention by the Court of Cassation, with Order No. 16654 of June 22, 2025, fits precisely into this context, providing important clarifications regarding VAT treatment in relationships between consortia and consortium members, especially when the mechanism of mandate without representation is in operation. This ruling, which saw C. (represented by D. A.) versus A. (Avvocatura Generale dello Stato) as parties, rejecting the appeal against the decision of the Court of Tax Justice of the II degree of Tuscany, establishes fundamental principles that deserve careful analysis for businesses and professionals.

Mandate Without Representation in the Consortium Context: A Regulatory Framework

Before delving into the core of the decision, it is useful to briefly recall the regulatory framework. Consortia are forms of collaboration between companies, governed by articles 2602 et seq. of the Civil Code (in particular, art. 2615 ter for consortia with external activities), aimed at regulating or carrying out phases of their respective businesses. Often, the consortium acts on behalf of the consortium members but in its own name, configuring a mandate without representation (art. 1705 c.c.). This means that the consortium concludes agreements with third parties, acquiring rights and assuming obligations, but is required to transfer the results of these operations to the consortium members.

Traditionally, in the VAT sphere, the relationships between principal and agent without representation have enjoyed a certain fiscal "neutrality," replicating the main transaction for tax purposes. However, the Supreme Court wished to clarify how this neutrality should be interpreted and applied, especially in a complex context such as that of consortia.

The Cassation Ruling: End of Fiscal Neutrality in Consortium Relationships

Order No. 16654/2025, with rapporteur Dr. P. G. and president Dr. T. H., directly addresses the issue of the fiscal relevance of internal relationships between a consortium and its members under a mandate without representation. The maxim extracted from the ruling is of fundamental importance:

In matters of VAT, in the case of a mandate without representation between a consortium and a consortium company, the relationships between the agent and the principal lose their neutrality, becoming premises for the application of the tax, the taxable base of which corresponds to the consideration for the service rendered or received by the agent without representation, in one case reduced and in the other increased by the commission, so that from a fiscal point of view, no difference is legitimate between what is invoiced by the consortium company to the third-party client and what is invoiced by the consortium member to the consortium company, except for that corresponding to the amount of commissions or the cost of specific services rendered by the consortium to the third-party client.

This ruling marks a firm point: the relationships between the consortium (agent) and the consortium member (principal) are no longer automatically neutral for VAT purposes. They themselves become taxable transactions. The taxable base for these internal operations must correspond to the consideration for the service rendered or received by the agent without representation, with the addition or reduction of the commission. This implies that, except for the commissions due to the consortium or the cost of specific services rendered by it to the third-party client, no price difference is permissible between what the consortium invoices to the end customer and what the consortium member invoices to the consortium itself.

This principle is in line with the interpretation of article 3, paragraph 3, of Presidential Decree No. 633/1972, which equates services rendered or received by an agent without representation to those rendered or received by the principal. The Court also refers to the previous conforming maxim No. 21860 of 2016, as proof of a consolidated orientation that needs to be fully understood in its practical application.

Practical Repercussions for Businesses and Professionals

The implications of this order are significant for all consortium companies and their members operating under a mandate without representation. Here are some key points to consider:

• Recalculation of the Taxable Base: It is essential to ensure that the taxable base of internal operations correctly reflects the consideration and commissions, without undue differences compared to external invoices.
• Review of Invoicing Models: Companies will need to review their invoicing procedures to ensure compliance with the principle established by the Court of Cassation, preventing the