The tax collection file has the immense power to upset the biorhythms of our body: tachycardia, stress, agitation, anguish, anxiety and insomnia; harmful to our health but excellent allies of the Financial Administration who trust in a quick payment as these factors spur us to act as soon as possible to solve the problem and get rid of it.
The aim of this article is to provide knowledge to all taxpayers, so that they can deal with these situations as calmly and carefully as possible, knowing the risks and consequences, but also knowing what to do.
One of the first things to know is that both a notice of establishment by Agenzia delle Entrate and a tax folder by Agenzia delle Entrate, they are enforceable acts and immediately enforceable 60 days after the date of notification of the act. From this fateful date, the financial administration will inevitably activate a procedure aimed at the enforced collection of the tax, through just all the legal instruments made available by law (mortgage, foreclosure, etc””).
But on the other hand, it is precisely the in-depth knowledge of all these mechanisms that leads us to be able to say that, even if once it has begun, the executive process is not necessarily completed.
In fact, the completion of the enforcement procedure precludes a whole series of factors, first of all the respect of the terms that, as you know, must collide with the limits set by law (the famous prescription).
Another important element to be known is precisely the relationship and the shifting of competences, with regard to the collection of taxes, from the Revenue Agency: The former establishes that the fees have not been paid and, since it cannot act against the taxpayer itself, it must necessarily delegate the latter to initiate the implementing acts. This causes that sometimes, in the folds of the procedure (apparently simple and linear, actually complicated) there may be errors which once again allow the debtor to find fault and evidence in order to propose possible opposition.
It is clear from what has just been said that, when it comes to the final ( for example the foreclosure of taxpayer’s salary, pension, bank or postal account, any rent received by a tenant, house-where possible- or land, claims on other administrations, etc”” ) means a process initiated by the Revenue Agency but not carried out by it, but delegated by it to another body: the Revenue Collection Agency agrees to act on behalf of the Revenue Agency and to activate all the executive acts.
Below we will see the specific case of the tax mortgage, and the differences between the foreclosure activated by the Revenue Agency, and the one instead activated by the Revenue Collection Agency (ADER).
Agenzia delle Entrate (Revenue Agency)
We have seen that there is no foreclosure of the Revenue Agency but only of the Revenue Collection Agency (at least to date, even if the intention of the legislator is to shift, over time, all powers “”“ including those of the tax collection “”“ under Revenue Agency). In spite of this, however, there is the possibility of a mortgaged by the Revenue Agency, better known as a tax mortgage. Let’s see what it is.
The tax mortgage is that which is activated directly by the tax office, even before the initiation of the tax collection procedure (which happens precisely through the delegation ad ader) and then the notification of the infamous tax folder. In this case, it is directly to Agenzia delle Entrate after having communicated to the taxpayer the tax irregularity, the notice of establishment and the order to pay to the tax authorities the sums due.
It is important to point out, however, that the tax mortgage is not an act of foreclosure.
The foreclosure is moved to a later stage (and, moreover, possible). It is only intended to prevent the debtor from committing fraudulent acts such as the sale or donation of the property; in fact, by registering the mortgage, the tax authorities may foreclose the property despite any transfer of ownership to another party.
The Tax Office may register the mortgage on the taxpayer’s real estate “also on the first house ““provided that its credit is higher than 20 thousand euro
Obviously, the notice must have been notified beforehand and, from now on, at least 60 days must have elapsed to allow the warrant to pay or to object. Even before the mortgage it is further necessary that the administration notify a mortgage notice and leave at least 30 days from now.
It should also be pointed out here that the same power is also given to the Guardia di Finanza when there are urgent reasons to fear a possible depletion of the debtor’s assets.
Start of foreclosure by Agenzia delle Entrate
As mentioned several times, Agenzia delle Entrate is not competent to start foreclosure against the taxpayer, but must delegate adhere and the delegation takes place through an act called registration. With it, the office certifies in a document “precisely the role “own credit, cause, entity, interest and penalties “ and transmits it to Agency Revenue collection. The role is “made executive”” that is, it is given, with a simple attestation, the power to justify foreclosure by adherents.
In normal cases, Agenzia delle Entrate notifies the payment folder with which it gives the taxpayer 60 days to pay. However, if the Revenue Agency has already sent the debtor a enforceable statement notice (now immediately enforceable), the tax records may no longer be formed and the Agenzia delle Entrate notifies the taxpayer of a simple takeovernotice; in it informs the taxpayer that he has received the power to initiate collection.
At this stage, the Offices are obliged to respect different terms: firstly, between the date on which the role is rendered effective and the date on which the first tax record is notified, there should not be too much time: normally 2 years. Beyond this time, there is the so-called forfeiture from the collection and the folder is actionable.
Second, between the notification of the notice of detection and that of the file must not start the prescription terms which are different depending on the tax: 10 years for VAT, hyperf, irap, stamp duty, stamp, land registry, RAI fee, contributions chamber trade; 5 years for imu, tasi, tari, traffic fines and administrative sanctions, contributions INPS and INAIL 3 years for the car stamp.
Unlike the limitation period, limitation periods may always be interrupted by a registered letter containing the notice of payment.
Regardless of its formation, the file must in any case contain, under penalty of cancellation, the indication of the claim, the causal (I.e. the type of charge) and the motivation (for example, annuity, sentencing, finding by the Revenue Agency, etc.). In addition, always under penalty of cancellation, must indicate not only the capital due as tax and sanctions but also the interest, with the rate applied for each annuity; also, in the latter case, if this were not to be the file would be impugnable.
The foreclosure of the Agency Revenue collection
Let’s look at the case instead of adhering. Once the folder or the take-over notice has been notified, the Revenue Collection Agency may start foreclosure on behalf of Agenzia delle Entrate. No specific reminder is required from the latter because it now has its own power which it exercises independently of the delegate.
At this point, two possibilities are opened: either you pay (also through an installment) or you accept the risk of a possible action by the Agency Revenue collection.
Actions can be of two types and can also be added together.
The first are the so-called precautionary actions that adhere puts in place to avoid that the taxpayer divests of the goods. This includes the stop car and the mortgage on the taxpayer’s . The mortgage is possible”also on the first house “ if the debt exceeds 20 thousand euros and if it was notified, 30 days before, a notice.
The second are the notorious foreclosureForeclosures which may affect taxpayer’s movable property (cars, home furnishings, valuables, etc.), real estate (houses, land) and claims from third parties (salary, account, pension, rent, receivables from general government, etc.).
Even at this stage, that is against foreclosure, the taxpayer may lodge an objection but only if:
the folder was never notified;
after the folder, the limitation period has passed;
the folder has since been challenged and canceled or suspended;
the foreclosure affects property owned by another person or stackable by Nature;
the procedure provided by law for foreclosure has not been respected.
It must be borne in mind, however, that at this precise moment, with the opposition to foreclosure, the disputes of form or substance that could be raised against the file can no longer be raised; for these in fact you have only 60 days from the notification of the folder itself, beyond which you decay from such possibility .
In the next article, entitled How to defend yourself from Agenzia delle Entrate for Collection, we will discuss just the steps after the notification of a tax folder to get to analyze all the possible disputes that can be raised.
Di Stefano Pignatelli
Dottore Commercialista in Roma.