Energy companies, the Consulta 'saves' the tax on extra-profits
According to the courts, the non-deductibility of the contribution from IRES is legitimate
Key points
The 'extraordinary circumstances' in which it was born come back to save the first so-called 'extra-profits tax' of energy companies in constitutional scrutiny.
The Constitutional Court returned to the subject in its ruling 180/2025 filed yesterday (editor Luca Antonini), declaring unfounded the questions of legitimacy of the rule, Article 37 of Decree-Law 21/2022, which had asked energy companies for a 'solidarity contribution' equal to 25% of the higher VAT balance accrued in the winter of 2021/22 compared to the same period of the previous year.
The previous one
The Constitutional Court had already 'corrected' the rule last year, in the sentence 111/2024, which had ordered that excise duties paid to the State be excluded from the tax base. Yesterday's decision also further refines the mechanism, specifying with a constitutionally oriented interpretation that for newly established companies the time frame of the VAT deductions to be compared starts 'from the completion of passive transactions aimed at business activity'. If a company has actually started trading on 1 January 2021, therefore, the period to be compared will be January-April 2022 with the same months of the previous year, without being able to go back to October as is the case in the ordinary way.
The new objections
For the rest, however, the Consulta rejected the new objections that had arrived on its tables, mainly related to the non-deductibility of the contribution from IRES and its possibility, in the absence of ceilings (introduced instead for the second solidarity contribution), of 'fully eroding the company's income and assets', as complained of in the appeal.
On the first aspect, the view of the judges of the laws is substantial. In the case of a deductible contribution, taking into account the revenue requirements that arose at that juncture characterised by the post-Russian-invasion inflationary flare-up in Ukraine, the legislature would probably have had to increase the rate of the contribution in order to allow it to be deducted the following year: 'the effect - the Court inferred - would have been substantially similar'.
