Superbonus, step back in audits of public participations and utilities

Public shareholdings and utilities come out of the cone of IRS audits on general contractors. This is one of the effects of the internal directive with which the Inland Revenue Agency (see "Il Sole 24 Ore" of yesterday) has finally shed light on the checks on all those entities that, in recent years, have led the way in the execution of superbonus works. Thus, also those intermediaries who, from 2020 onwards, have subcontracted en bloc the 110%-related works are also saved from objections based on presumptions: hence, the many companies that have sold services linked to the superbonus without materially executing works. They, too, will need 'appropriate means of proof'.

The Revenue's disputes, which started at the local level from various regional directorates on general contractors, have put under scrutiny all those subjects who, in order to facilitate the execution of the superbonus works, have set themselves up as the sole interlocutors of the condominiums. The Agency's suspicion is that these entities have (without explicitly declaring it) included in the invoices, deducted or collected as tax credits, fees for mere coordination activities, which instead cannot be the subject of the subsidy. Among these entities were many construction companies, which partly performed the work themselves and partly subcontracted, but also several public subsidiaries or large utilities, which subcontracted en bloc.

The directive that has just been issued explained what the position of construction companies is, completely legitimising the subcontract, but also focused on those who have entirely turned the work over to third parties, also armouring their position. For the Agency, 'the qualifying feature of the contract is the assumption of an obligation of result towards the client. Internal organisational choices, including the decision to carry out the work directly or by subcontracting, do not affect its legal position or the liabilities arising from it'. This scheme is taken to its extreme consequences. Not only can subcontracting in part not give rise to the presumption of tax irregularities, but the same reasoning must be made for those who have subcontracted everything.

"The nature of a contracting company," says the Agency's directive, "remains both when the company carries out the works with its own personnel and means, or when it entrusts third parties, in whole or in part, with the execution of the works by subcontracting. In the latter case, its activity is concentrated mainly on the technical coordination of the intervention, while the execution material work is carried out by subcontractors". Again, in another passage, the directive adds: "Nor does the borderline hypothesis in which the company does not have its own company capable of carrying out the work at all and must necessarily entrust the entire execution of the works to subcontractors matter. In all these hypotheses, the company remains the contractor, responsible to the principal for the execution of the work".

The organisational set-up, therefore, is totally irrelevant and cannot lead to the presumption of the presence of anomalies; it only has an internal value within the company that managed the construction site. Even for those who have subcontracted 100 per cent, therefore, "a specific justification, supported by appropriate means of proof" is needed to demonstrate that "a portion of the invoiced consideration does not relate to the margin earned by the contractor as a result of the performance of its ordinary activities". In all these cases, in fact, the business margin remains totally legitimate and it is not possible to presume the existence of "a mere administrative coordination activity, distinct and independently remunerated". The contentions, in essence, will have to be punctually supported by evidence.