EATLP Congress 2015 “Surcharges and Penalties in Tax Law” ITALY Prof. LORENZO DEL FEDERICO Full Professor of Tax Law, University of Chieti-Pescara (Italy) Dr. FRANCESCO MONTANARI Ph.D. in European Tax Law, University of Bologna (Italy), Researcher in Tax Law, University of Bolzano (Italy) Dr. PIETRO MASTELLONE LL.M. in European Union business law with specialisation in International and European Tax Law, Universiteit van Amsterdam (Netherlands); Ph.D. in Public and Tax Law in the European Dimension, University of Bergamo (Italy); Post-doc in International Tax Law, University of Florence (Italy) Dr. ANTONIO MARINELLO Researcher in Tax Law, University of Siena (Italy) Dr. SILVIA GIORGI Ph.D. in European and Comparative Business Law, University of Chieti-Pescara (Italy) Dr. LORENZO TROMBELLA Ph.D. in Procedural Tax Law, University of Pisa (Italy) SIMONE ARIATTI Ph.D. candidate in European and Comparative Business Law, University of Chieti-Pescara (Italy) VIRGINIA SCALERA Ph.D. candidate in European and Comparative Business Law, University of Chieti-Pescara (Italy) TABLE OF CONTENTS: 1. Taxpayer and third party duties. – 1.1. Tax return. – 1.2. Tax assessment procedures. – 1.3. Third parties’ duties. – 1.3.1. Financial intermediaries’ duties. – 1.3.2. Tax substitutes’ duties. – 1.4. Tax assessment methods. – 1.4.1. Analytical tax assessment. – 1.4.2. Analytical-presumptive assessment. – 1.4.3. Synthetic assessment (so-called expenditures assessment system). – 1.5. Object of the tax assessment procedures. – 1.5.1. Partial tax assessment. – 1.5.2. Ex officio tax assessment. – 1.6. General duties within tax assessment procedures. – 1.6.1. Accounting duties. – 1.6.2. Duty to provide clarifications and answers to specific questionnaires. – 1.7. Duties regarding clarification, examination and supervision procedures. – 1.8. Duties regarding tax collection. – 1.9. Duties regarding tax shelters or tax schemes. – 2. Definition and categorisation of different types of surcharges. – 2.1. Criminal penalties. – 2.2. Administrative tax penalties. – 2.3. Interests. – 2.4. Other surcharges. – 3. Catalogue of attributes of different surcharges. – 3.1. Purpose/aim/justification. – 3.2. Prerequisites. – 3.3. Time of the application of penalties: immediately or after a predetermined period. – 3.4. Amount of the penalty, base on which it is applied and duration of imprisonment in case of criminal tax penalties. – 3.5. Presence or absence of taxpayer’s intentionality in the tax infringement. – 3.6. Exemptions from surcharges. – 3.7. Bodies empowered to impose surcharges and penalties. – 3.8. Procedures regarding the imposition of administrative and criminal tax penalties. – 4. Surcharges regarding third parties. – 5. Legal protection of the taxpayer and third parties. – 5.1. Legal remedies available and competent authorities. – 5.1.1. Legal remedies against criminal tax penalties. – 5.1.2. Legal remedies against administrative tax penalties. – 5.2. Interim measures. – 5.3. Advance ruling and requirement for its application. – 5.4. Alternative dispute resolutions and settlements applicable to surcharges. – 5.4.1. Agreement on the notice of assessment. – 5.4.2. Mediation for “small” tax controversies. – 5.4.3. Conciliation before the Tax Court. – 5.5. Final remarks on the general level of taxpayer’s rights protection. – 5-bis. Abuse of tax law and penalties. – 6. Deductibility of penalties. – 7. Numbers. – 8. Effectiveness. ABBREVIATIONS: ATPCA = Administrative Tax Penalties Consolidated Act (Legislative Decree of 18 December 1997, No. 472) IC = Italian Constitution (Costituzione della Repubblica Italiana) ICC = Italian Constitutional Court (Corte Costituzionale) ISC = Italian Supreme Court (Suprema Corte di Cassazione) ITAA = Income Tax Assessment Act (Presidential Decree of 29 September 1973, No. 600) ITAs = Italian Tax Authorities (Agenzia delle Entrate) ITCA = Income Tax Consolidated Act (Presidential Decree of 22 December 1986, No. 917) TBR = Taxpayer Bill of Rights (Law of 27 July 2000, No. 212) TCCA = Tax Collection Consolidated Act (Presidential Decree of 29 September 1973, No. 602) TCPCA = Tax Criminal Penalties Consolidated Act (Legislative Decree of 10 March 2000, No. 74) TLCA = Tax Litigation Consolidated Act (Legislative Decree of 31 December 1992, No. 546) VCA = VAT Consolidated Act (Presidential Decree of 26 October 1972, No. 633)