Few invoices issued: tax assessments
The tax assessment for the professional who gives a few bills.
Summary: 1. Premise. 2. Assessment pursuant to art. 39 Presidential Decree 600/1973. Taxable and requirements. 3. The assessment analytical-inductive and the "qualification of presumptions." 4. In particular: the inductive assessment made against a lawyer emits a few bills. Law.
1) Introduction The tax authority can proceed to verify the income, pursuant to Article 39 of Presidential Decree September 29, 1973, n. 600, against the persons obliged to keep accounting records (holders of business income and self-employment), regardless of the data resulting from accounting records. However, it becomes necessary, even if briefly, to reflect this contradiction in terms: the possibility for the financial administration of whatever the accounting records to reconstruct the income of persons who, necessarily, there are bound. Consequently, it is important to identify what are the factors, data, etc.., Non-accounting, the financial administration will take to achieve a result that will lead to correction of the declaration of this particular category of taxpayer. It reiterates the point: the tax return is filled in, and sent, on the basis of results from the accounting records (day book, VAT records, book depreciable assets, etc ...). The same can be rectified by the tax authorities without being given the positive and negative components that lead to the result (income or loss), but starting from the consideration, or better suggestion, not a judgment of the likelihood of the income declared with the actual one.
2) Establishment pursuant to art. 39 Presidential Decree 600/1973. Taxable and requirements.
The legislator, art. 39 of Presidential Decree 600/1973, provides for the possibility that the Administration can make use of three types of assessment: analytical, analytical-inductive and inductive "pure". Accertativa This methodology is used by the Office for the reconstruction of income or turnover, starting from the accounting data. The first paragraph, in particular, can be expected to proceed against the persons obliged to keep accounting records (in essence, entrepreneurs and self-employed), for assessment of type:
analytic in the presence of a proper accounting - in the absence of presumptions serious, precise and consistent - if there are differences between the documentary aspects and the declaration, because:
the positive and negative components of income indicated in the declaration does not match those recorded in the financial statements (lit. a);
not have been correctly applied the provisions on corporate income in paragraph (b);
declaration contains incomplete data, false or inaccurate (lit. c), resulting in a certain and direct by the Minutes done on the occasion of the appearance of the taxpayer at the offices, or from the questionnaire prepared by the taxpayer at the request of, or from the documents produced on that occasion, or by statements of other entities, or by the minutes of inspections of other parties;
analytical-inductive, in the presence of a proper accounting, where the declaration contains incomplete information, false or inaccurate, which show: the inspection of the accounts, or the inspection carried out in the taxpayer, or by checking invoices and accounting documents , or the data and information gathered by the Office pursuant to art. 32 Presidential Decree 600/1973, the existence of undeclared activities or non-existence of liabilities declared can be gauged on the basis of mere presumptions, provided serious, precise and concordant in paragraph (d). Article 39, paragraph 2, provides the SO-CALLED assessment inductive "pure"; accertativa with this methodology is expected that, notwithstanding the provisions referred to in the first paragraph - and, therefore, notwithstanding the accounting records kept - the Office determines the income, based on the data and information in any case collected or come to his knowledge, with the power to disregard, in whole or in part from financial statements and accounting records, and, for that purpose, may also make use of presumptions "simple" unqualified, lacking, that is, the requirements of precision, severity and correlation. It 'good to point out that the tax authorities will proceed to investigation ledger only under specific conditions required by law. In fact, in order to reconstruct the total business income of the taxpayer, on the basis of the 2nd co. art. 39 (which allows you to ignore both the plant accounting is the use of presumptions with character precision, severity and correlation), it is necessary and unfailing existence of strict conditions: a) when the business income has not been shown in statement b) when the inspection report prepared pursuant to Article 33 is that the taxpayer has not taken or is otherwise removed from one or more of the inspection records required by Article 14 or when the records are not available for the same due to force majeure, c) when the omissions and false or inaccurate information, ascertained under the preceding paragraph, or the formal irregularities in the accounting records resulting from the inspection report are so serious, numerous and repeated to make it unreliable as a whole the scriptures themselves to lack the guarantees of a systematic accounting d) when the taxpayer has not responded to calls placed by the Offices under 'art. 32, paragraph 1, paragraphs 3 and 4 of this Decree or Article 51, paragraph 2, paragraphs 3 and 4 of Presidential Decree 633 of 72.
3 The assessment analytical-inductive and the "qualification of presumptions." The existence of serious inconsistencies between the revenues, fees and remuneration declared and validly inferred from the characteristics and the operating conditions of the specific activity, ie from field studies prepared pursuant to art. 62 bis of Decree Law n. 331 of 30 August 1993, they will represent the presumptions for the tax authorities, upon which to build the whole process ascertainment. The criterion of reasonableness had already been sanctioned by the Supreme Court in 1995, which had stated that the taxpayer's accounting professional, although formally correct, it should be regarded as essentially unreliable, when configgente with normal common sense, resulting legitimacy of the investigation inductive. Similarly, the Supreme Court, in its judgment no. 14292 of 30 October 2000, stated that "the number of taxed that have their own accounting records at a professional is a valid parameter for the assessment of the income of inductive professional himself, and also to consider the possible unreliable accounting records maintained by the same professional. " And again, the same judgment had enunciated a basic principle: "the parameter according to which the number of customers is one of the elements from which you can derive inductively the income of an individual is then subject to a law of this Court now peaceful." Therefore, it will burden the taxpayer-professional adduce able to overcome these presumptions. The presumption that professionals do not usually offer their services free of charge, or deferring the compensation claim, it is easily overcome through a detailed and specific test (but not through a mere assertion). In a system which allows the use of presumptions in favor of the Administration, the only remedy is charged to the taxpayer that the burden of proof. In this presumption, that can easily oppose, in respect of the professional service, does not detect the start or end time of the same: the system of determining the self-employment income shall apply the method cd "Cash". Thus, in the case of a dentist, you will be able to oppose to such a presumption, that the number of daily visits declared can not imply, in itself, in terms of presumptions, a proportional payment: we must, conversely, consider the payment care completed. This happens even to the engineer for the preparation of a project relating to important works, and it also happens to the lawyer, especially in cases where the duration is not predictable.
4. In particular: the inductive assessment made against a lawyer emits a few bills. Law.
Recently the Supreme Court judgment no. 7460 of 27/03/2009, said that is a valid assumption, for the purposes of inductive performed on the professional - lawyer, "the issue of a number of invoices is not adequate to cover the dignity and honor of the profession and also compared to the number of appeals filed on behalf of its customers. " In the judgment in question was reiterated the legitimacy of the investigation by the Financial inductive used to rectify the self-employment income declared by a professional, which had issued a number of invoices negligible. In the present case, in particular, the Income Tax Office in Rome had rectified the self-employment income for the legal profession, as a result of an audit which found that the appellant had issued only 25 bills in the face of presentation of a number of civil and administrative appeals of more than 200. The professional, in response, had objected that a significant number of these appeals had been presented to members of a trade union's legal department where he was a member and for which it had received only paltry compensation to the favorable outcome of related litigation. In particular, the professional had objected other elements which can be identified by its actual standard of living, such as your home, his professional studio, the same tests performed by the bank G. of F. The Supreme Court, however, upheld the claims of the judges of the Regional Tax Commission, as an annual income of € 6590.00 did not seem fair compared to the amount of work, for that year consisted of the presentation of appeals for more than 200 customers. The ruling seems to fit the orientation of the same callback Supreme Court with Cass. Civ., Sec. Trib, 13/04/2007, n. 8886, according to which the tax authorities can proceed, even on circumstantial evidence, the assessment of higher revenues on business income or self-employment, even in the presence of an accounting regularly held. He also considered the legitimate finding, compared with professionals, based on the list of customers and turnover of the same. In this case, the Office had proceeded to the determination of the remuneration received by the taxpayer sula basis of the list of its customers and revenue declared by them, taking account of professional fees. In support of the above, the same Supreme Court with Cass. Civ., Sec. Trib, 24 November 2006, n. 25002, in relation to a complaint on behalf of an accountant, for which it was redetermined inductive income, as the number of customers was significantly higher than the number of invoices issued and the income declared, had stressed that: " it should be borne in mind that in the absence of statutory provisions to the contrary, proof of receipt of income can also be given and that the need for presumptions regarding their substance, to take into account only the payments actually received during the tax year, does not exclude the possibilities, in terms of evidence, to believe paid in the same year of execution, all those services for which there is evidence capable of justifying such conviction. Both pointed out, it remains only to add that in the case in question, the Regional Commission derived the timely payment of benefits by the number of the same, by the caliber of the beneficiaries, given the consistency of the work in their favor, and the characteristics of the structure used by the Failure to indicate, by the taxpayer professional, evidence to prove otherwise. " Even the court rulings, Central Tax Commission, Sec. XXV, judgment no. 799 of 04 March 1997 had confirmed the correctness of the assessment inductive incomes, art. 39, paragraph 2 of Presidential Decree September 29, 1973 n. 600, initiated in respect of the subjects artists and professionals, for which he had legitimized the work of the office that had taken action against an accountant through the instrument of the investigation inductive, laying the foundation of it is a reasonable presumption of unreliability of the declaration of the income of the taxpayer, for this purpose delegating the burden of evaluation of estimates of the volume of business of the entity to the competent Regional Tax Commission. The greatest number of customers compared to the invoices issued and the disproportion between the amount of the latter, also in relation to the probable efforts made by the professional in his work performance, circumstances are such as to ensure that the Office assume the 'existence of undeclared activities and considers the records unreliable. In such cases, it will be necessary to demonstrate that the remuneration of the professional is exactly what indicated on the invoice, regardless of the number of "practices" carried out or treatment. It should be mentioned that the determination of the tax base of artists and professionals follows a cash basis only and therefore detects only the time of the receipt of the fee, of no importance the beginning of the professional service. The tools of evidence which may use the professional are of the same nature as those adopted by the tax authorities, which may rely on presumptions to refute the inferential reasoning Tax Office. Thus, as stated by the Court on the merits, the Regional Tax Commission Sicily, Sec. 1, sentence no. 13 of 08 .04.2008, it is reasonable to assume that only the conclusion of the dispute, with a favorable outcome for the client, can be legitimizing the conclusion of the consideration for the payment by them. Consequently, it is prudent that the professional takes every precaution to safeguard your professional credit, not only for the claim itself, but also because they give it up, purely and simply, the Tax Office could lead to a judgment of perception "in the black" of the same . Ultimately we could find before the failure to perceive the consideration professional and contestation of the non-payment of taxes for it, obviously with the imposition of sanctions.
06/09/2010
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Source:
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