La TIA è un tributo
Prime pronunce di merito dopo la sentenza della Consulta
Con la sentenza n. 27/2010, la Commissione Tributaria provinciale di Reggio Emilia si è uniformata al principio sancito dalla Corte costituzionale, secondo cui la TIA ha natura tributaria. E' quindi nulla la bolletta/fattura TIA emessa con IVA. Per un ulteriore approfondimento si rimanda al commento a firma di Elisa Manoni, di prossima pubblicazione su GT - Rivista di giurisprudenza tributaria.
Di rilievo è la recente sentenza della Commissione Tributaria Provinciale di Reggio Emilia n. 27 depositata in segreteria il 15 febbraio 2010; l’argomento è la ormai famosa questione dell’ applicazione dell’IVA sulla Tariffa di Igiene Ambientale (c.d. TIA) dopo la sentenza della Corte Costituzionale; si ricorda, infatti, che la Consulta con la sentenza n. 238 datata 16-23 luglio 2009, ha stabilito sostanzialmente che la tariffa rifiuti è in realtà una tassa, perché il suo costo non è proporzionale al servizio.
In sintesi, niente tariffa, niente imposta sul valore aggiunto, con tutte le complicazioni per il rimborso degli arretrati agli utenti e il cambio di regime dei soggetti che operano in campo IVA.
Il caso
La questione affrontata dai giudici della CTP di Reggio Emilia nasce dall’impugnazione, by a taxpayer, a invoice issued by the company that manages the waste, the bill was issued as consideration for the service of municipal waste and similar for two local employees, and was inclusive of VAT issued in October 2009, after then, the decision of the consultations which he stated the nature of taxation and therefore the inapplicability of value added. The action was for the annulment of the note issued by the operator, and also against the City for levying body.
analysis of judges
The analysis conducted by judges of First Instance ruling in the dense subject of this commentary is objectively a great interest in various aspects analyzed, it will consider the points which are considered useful and are linked to the ruling made last summer by the Constitutional Court. The CTP
notes that the sentence no 238/2009, the Constitutional Court held that the TIA is a tribute, to be completely identical to the waste tax. As such, the proceeds received may not be subject to value added tax , instead affects only the fees of the services . The subject applicant seeks the annulment of the bill for lack of requirements by the Advisory and in the alternative non-VAT debenza.
The Commission finds merit in law and in consultation with the judgment stated with absolute clarity and thoroughness that the TIA is a tribute
· the withdrawals have authoritative structure and synallagmatic: the service must be established compulsorily by the municipalities and those required to pay can not avoid that obligation, subject to mandatory grounds for exclusion or facilitation;
o to the payment of the TIA can be provided for bills conforming to the requirements provided by law for acts tax, resulting in actionable even of acts that have the same function of investigation and settlement of charges;
° like are the criteria for the two samples commensuration: potential to both detect the production of waste and they , proof of the absence of a relationship synallagma between payment and service, are also payable if the manufacturer demonstrates that it has adequately provided for disposal;
· both levies are outside the scope of VAT , in view of the absence of a relationship sinallagma.I of lower courts observe that the disputed bill is legitimately contested by the taxpayer.
As provided in the consultation, the bills / invoices of the TIA must meet the requirements of the law for tax charges. In the areas of collection, payment of the folder should contain, among other things, the 'header responsible for the procedure, the' entry role, and the issuing and service thereof, the consequences related to 'breach of the obligation resulting from the role, modalities, the term judicial organ that could be used.
The invoice / bill for the purpose of classification of the tax act, must necessarily be integrated with the requirements described above. Among other things, the document issued by the management which is intended to pay the Health Fee Environment (TIA where the term never appears) does not include the requirements just mentioned, however, but requires the payment of VAT, according to The Look, is not due into account the absence of relationship sinallagmaticità.
The ruling of the Constitutional Court No 238, 16/23 July 2009 was published in OJ No 30 of 29 July 2009, under Article. 136, paragraph 1, of the Constitution "when the Court declared unconstitutional a provision of law or enactment having the force of law, the law ceases to have effect the day after the publication of the decision. " A previous case
A brief note also the recent decision of the judges of CTR Toscana which shows that even the question of TIA present issues not clarified. The judges of the merits of the Regional Tax Commission of Tuscany who have spoken with sentence 27/13/2010 substantially stated that VAT is payable on the TIA, at least in cases where the service is to manage a company. The tax, in fact, according to the judges responsible Tuscan is due when a service is intended to satisfy a public interest is carried out under the company.
Conclusions
The CTP of Reggio Emilia in the final part of the sentence is not limited to bottles, after the Constitutional Court, the application of VAT on the TIA, but also says nothing the invoice issued by the managing because without the mandatory information for the acts of local tax .
By virtue of the foregoing, the Tax Commission upholds the claim of the taxpayer and declare void the invoice issued by the operator of the service and ordered to pay the costs in the amount of € 800, both quoted the managing body, both the City as a levying body.
(Commission tributaria provinciale REGGIO EMILIA 15/02/2010, n. 27)
0 comments:
Post a Comment