With the approach of deadline for submitting the model Income 2019, set for 02.12.2019, the rules for filling it are analyzed in the presence of the R&D tax credit.
The automatic nature of the R&D credit involves it independence, for the purposes of its recognition and enjoyment, from the fulfillment of declarative obligations.
The onset of the right to credit R&D depends on the tax period of actual payment of the eligible costs; credit recognition and usability in compensation depend instead, in light of the regulatory changes applicable to starting from the credit accrued in relation to the tax period 2018, of theArticle 1, paragraph 70, letters e) and f), Law 145/2018 (c.d. Budget Law 2019), from the fulfillment of the accounting certification obligations.
The non-compliance with the declarative obligations does not therefore prejudice neither the right to the benefit of the facilitation, nor the relative fruition, but constitutes, as specified by the circular AdE 13 / E / 2017, a purely formal violation that can be rectified:
- by presenting the supplementary declaration;
- through the institution of active repentance, pursuant toArticle 13 of Legislative Decree 472/1997, with reference to the sanctions provided for byArticle 8, paragraph 1, Legislative Decree 471/1997 for "violations related to the content and documentation of the declarations”, Which provide for a minimum of 250 euros it's a maximum of 2,000 euros.
The circular AdE 13 / E / 2017 has also explicitly excluded the obligation to affix the compliance visa on the related declarative model for the use in compensation of an R&D credit for an amount greater than 5,000 euros: the credit is in fact strictly facilitated and is not directly attributable to income taxes.
The declarative obligations provide for the exposure of the credit within the RU “tax credits” of the Income model relating to the tax period in which the eligible investments were made (or the period of accrual of the credit) and in the declarative models of the subsequent tax periods, until exhaustion of use.
The "State aid" statement of the SR must not be completed.
The R&S tax credit is set up in fact, as specified by circular AdE 5 / E / 2016, as a general facilitation that does not fall within the category of "state aid", not detecting:
- for the purposes of calculating aid c.d. de minimis, referred to in EU Regulations n. 1407/2013 is 1408/2013 of 18.12.2013;
- for the purposes of complying with the limits set by the "Discipline of state aid for research, development and innovation" of which in the Communication of the European Commission (2014 / C 198/01) of 06.27.2014.
Income declarative models joint-stock companies, commercial and equivalent entities, partnerships and individuals have incorporated, in the instructions to compile and structure the RU framework, the regulatory changes applicable to R&D credits accrued during the 2018 tax period.
The sections of the RU framework interested in the R&D credit are the following:
- section I, intended for the indication of the credit identification code B9 and the relative data on the carryover from subsequent years of residual R&D credits to the amount of credit matured in the 2018 period and on any offsetting uses that occurred in the year;
The fundamental data relating to the expenses that contribute to the determination of the R&D credit (historical average and eligible investments incurred during the year) are therefore exposed in the section IV, line RU100 "Research & Development".
- on line RU100 – column 1, the historical average must be indicated of eligible R&D costs, calculated as the arithmetic average of the three-year period 2012-2014, excluding, by virtue of the criterion of homogeneity of values, the costs incurred for the purchase of intangible assets deriving from intra-group transactions, no longer eligible as per amendment made with effect from 2018 fromArticle 8 D.L. 87/2018 (c.d. Decree Dignity);
- in line RU100 – column 2, the total amount of R&D costs intramural incurred in 2018, excluding costs related to infragroup commissioned research, to be indicated in column 7;
- in line RU100 – column 3, the cost of personnel (former Article 3, paragraph 6, letter a), Law 145/2013), already included in column 2;
- on line RU100 – column 4, the amount of R&D costs incurred as a contractor company of foreign client, resident or localized in other member states of the European Union, in the States adhering to the agreement on the European Economic Area or in States included in the list of the D.M. 04/09/1996; please note that these costs were recognized as eligible under the 2017 Budget Law, as reiterated by the Principle of Law n. 15 of 11.12.2018;
- in line RU100 – column 5, the total amount of R&D costs extramural incurred in 2018;
- in line RU100 – column 6, the costs related to the research commissioned to foreign third parties, already included in column 5;
- in line RU100 – column 7, the costs related to research commissioned to infragroup entities residents and foreigners.
The cost incurred to fulfill the obligation to certify the accounting documentation is not shown in the Income model, which for companies not required by law to audit the accounts is recognized as an increase to the tax credit up to a maximum of 5,000 euros.
- Section VI-A, reserved for the particular case in which the tax credit has been the subject of transfer to the declarant, which must be drawn up when Section RU3 compiles line RU3.
Please note that the Revenue Agency has denied, in answer to the question n. 72 of 8.3.2019, the possibility of transferring the R&D credit in accordance with article 43-bis D.P.R. 602/1973, both pursuant to article 1260 cod. Civ. not deeming the transferability of tax credits to third parties as general admissible as a result of implementing deeds.
The transfer of R&D credit is admissible only for operations whose legal provisions provide for a confusion of rights and obligations of the legal entities involved, among which are included the merger, the division, the succession to the individual entrepreneur mortis causa and the sale of the business unit that generated the credit.