Among the obligations of the accountant is the submission of the Declaration of income. However, by negligence or by forgetfulness, the appointed professional may forget to present it. How to act in these cases? What to do when the accountant does not submit an income statement? Who is sanctioned if the model 730 is not presented within the deadlines?
Before answering these questions we take a step back, and cobwebs the memory on the presentation of the income statement, which should not stay the term presentation 730. Before unwelcome with the make accountant to have done things right. The declaration must be submitted to the Revenue Agency by telematic means, either directly or through its employer, the CAF (Tax Assistance Center) or a qualified professional. Even if you are logged in directly, you can use an intermediary. After the term presentation 730 for the electronic submission of the declaration, which is usually on 30 September, the taxpayer will have to verify the punctual compliance with the obligations of the intermediary. Alternatively, you can present the ordinary 730 model if you do not intend to use the precompiled model. Paper models can be collected directly from the municipal offices. Also in this case, the declaration must be submitted within the deadline of submission 730 through the employer, the CAF or a qualified professional.
What does the taxpayer have to do?
Now we enter more specifically: what to do when the accountant does not submit an income statement? According to a recent ruling of the Supreme Court, the taxpayer is not punishable if the non-submission of the income statement is attributable solely to the accountant. In order to avoid administrative sanctions, the taxpayer is obliged to prove that the forgetfulness is attributable exclusively to the professional, and give evidence that he has denounced it. The law stipulates that the taxpayer is not punishable, provided that the payment of the tax has not been executed “in fact denounced to the judicial authority and chargeable exclusively to third parties”.
The taxpayer is instead responsible for the non-declaration within the terms of submission 730 when he entrusts the assignment to an untrustworthy subject, according to the criteria of ordinary diligence. In these cases the so-called “Eligendo” blame on the part of the taxpayer, who is guilty of the choice of the person responsible for making the payment. There is also the responsibility of the taxpayer “in vigilante”, that is, when it has not checked the actual fulfilment of the tax obligation within the deadlines. The latter concept has been established by the Supreme Court, according to which “the obligations of submitting the declaration of income cannot be regarded as being absolved by the assignment of the relative mandate to the trader, as it is required that the taxpayer proves that he has placed a control and supervisory activity on their actual execution, in order to exclude liability for the absence of guilt for the sanctions possibly imposed”. In order to exclude any accusation of negligence, the taxpayer must demonstrate that he has carried out direct acts aimed at monitoring the actual work of the consultant.
How to report the accountant?
The complaint to the attorney of the Republic of the accountant, who did not submit the model 730, is advisable only in the event that an assignment signed by both parties has been prepared. In such a case, the taxpayer may denounce the failure of the intermediary to fulfill the Tax Court in litigation concerning the declarative omission. All sanctions are eliminated in the judicial office if all charges of guilt are forfeited against the taxpayer. According to the judgment in 55/2/2012, the Brescia CTP has established that no sanctions are owed to the taxpayer for omitted submission of the declaration, if the transgression is attributable solely to the professional in charge.
The taxpayer does not pay penalties, but is obliged to pay the tax
We have ascertained that if the model 730 is not presented by the accountant within the deadline, the taxpayer is not obliged to pay more and penalties. The infidelity or negligence of the trader does not exclude the taxpayer from the payment of the tax evasion, in essence taxes to the tax must be paid. In an old judgment the Court of Milan had sanctioned the following: The professional who, after receiving the appointment of tax and accounting consultancy, omits to present the declaration of incomes of the customer, Incurs liability for breach of contract.
As a mere material activity, the presentation of the model 730 does not represent, unlike what is done for the performance of intellectual work, a bond of the means but a real obligation to result. When the trader does not carry out the tax obligations that have been entrusted to him by the taxpayer, the compensation that is generally looming is represented by the greater burden that the taxpayer must bear against the exchequer, due to the error committed by the tax payer.
What sanctions are required for the taxpayer?
If the declaration of income is submitted beyond the deadlines, a penalty is foreseen ranging from a minimum of 258 euros to a maximum of 1,032 euros. However, the declarant has the possibility to place his position by means of the repentance industrious, a measure which causes the omission to be reduced by voluntarily paying a penalty of 25 euro within 90 days of maturity.
If, however, the declaration has been omitted altogether or has not been submitted within 90 days of expiry, the penalties may vary depending on whether or not taxes are due. In the first case the sanction varies from 120% to 240% of taxes due, starting from a minimum of 250 euros. In the second case the sanction may vary from 250 euros to 1,000 euros.
In the event that the declaration is submitted by the taxpayer before the submission deadline for the declaration of the following year, or before any other assessment, the penalty is halved from 60% to 120% of the taxes due, with a minimum of 200 euros. If the taxpayer does not have taxes due, then the minimum of the penalty will start from 150 euros up to a maximum of 500 euros.
Now you know what to do when the accountant does not present the income statement. However, in order to avoid sanctions and not to run into fines for non-your faults, I advise you to seek advice from a professional in the field, as a tax attorney, who will be able to direct you on the right track and give you useful advice.