CRYPTO AMNESTY, DECLARATIONS AND MONITORING ARE REGULARISED WITH A SPECIAL REQUEST

Taxpayers not entitled to business income, who have omitted to indicate in their tax returns referring to years that have not yet become definitive for tax purposes, the crypto-assets held until December 31, 2021, have the option to make them ’emerge’ by filling out a special request, the model for which will be approved by an Italian Tax Authority Director’s decree, which will also indicate the terms for the payment of taxes due.

Article 1 of Law 197/2022 (Budget Law 2023) provides for two types of regularisation:

– Paragraph 139 makes it possible to remedy the breach of the monitoring obligation (submission of the RW panel). In this case, the sanction is reduced to 0.5 % (1/6 of the ordinary sanction ranging from 3 % to 15 %) of the value of the undeclared assets and applies for each year in which the violation was committed.

– Paragraph 140 allows for regularisation of the position of taxpayers who have not declared income from holding crypto assets. A substitute tax of 3.5 % must be paid.

The two amnesties may be resorted to alternatively or jointly, without prejudice to the possibility of resorting, where still possible and more convenient, to the voluntary correction of tax return.

• If in year ‘n’ I breached only the monitoring obligations without earning any income, I will simply file a petition declaring the amount of assets held at the end of the year and pay the penalty reduced to 0.5%.

• If, on the other hand, in year ‘n+ 1’ I not only breached the monitoring obligations but also earned income from holding crypto assets, in order to regularise the position I will have to indicate that I have breached both provisions by paying both the 0.5 % penalty and the 3.5 % substitute tax, both calculated taking into account the value of the assets held at the end of each year (or at the time of realisation in the case of income from the disposal of all crypto assets).

• If in year ‘n+ 3’ I did not hold any crypto assets, I will not have to carry out any amnesty as there is no obligation to regularise all tax periods still assessable.

The tax periods that the taxpayer may decide to remedy are those for which the time limits for assessment or imposition of penalties are still pending:

– from the 2017 tax year onwards, in the event of a false declaration.

– from the 2016 tax year onwards, in the event of failure to declare.

The doubling of the assessment period that operates in the case of investments and assets of a financial nature held in States or territories with a privileged tax regime is not considered applicable, because the crypto assets are ‘aterritorial’ in that they are located on the web (not in the country where the wallets that hold the keys needed to access them are located).

From a subjective point of view, the subjects referred to in Article 4(1) of Decree-Law No. 167/1990 are eligible for emersion. These are natural persons, non-commercial entities, simple partnerships, and persons treated as such pursuant to Article 5 of TUIR. A partnership, other than an ordinary partnership, or a capital company cannot regularise the failure to indicate income.