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Refund of additional excise duties on electricity: post-intervention update of the Ministry of Economic Development

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As already known, following the recent rulings no. 27099/2019 and no. 27101/2019 of October 23, 2019, the Supreme Court declared the inapplicability of the provisions which introduced the provincial additional tax on the electric power excise duties (already abolished in 2012) as not consistent with EU legislation, confirming the right of the companies consuming electricity to request refund of provincial additional taxes unduly paid and not yet time-barred.
 
Therefore, the final consumer companies, that paid the aforementioned additional taxes (generally recharged by the supplier in the bill), can take an ordinary legal action of recovery for undue payments directly against the electricity supplier company, considering that an ordinary statute of limitation (10 years) for such legal civil action is applied, which is longer than the time limit (within two years from the date of payment of the mentioned taxes) provided to the supplier company requesting the refund to the Tax Authority.

Consequently, any company that paid the aforementioned additional taxes in years 2010/2011, could claim for the refund of the amounts unduly paid from the supplier company. The refund can, in exceptional cases, also be requested against towards the Tax Authority, when the consumer company proves that the legal action against the supplier is extremely burdensome (as it happens, e.g., in the case of the insolvency of the supplier).

Furthermore, it is necessary to highlight that the refund to be paid does not burden on the supplier company considering that once the final consumer companies have successfully acted for the refund against the supplier company, the latter, within 90 days from the final ruling, can claim – in turn – for the refund against the Tax Authority in order to receive back the amounts paid to the final consumer company following the ruling.

In order to clarify such a delicate issue, which can lead to the beginning of thousands of legal actions aimed at obtaining the refund of huge amounts in favor of final consumer companies, Confindustria (the Association of Italian Industrial Companies) has submitted a request to the Ministry of Economy and Finances in order to obtain an urgent legislative intervention that provides for the final consumer companies the right to act directly against the Tax Authority.

In this regard the Ministry of Economy and Finance (MEF) has provided with a negative feedback, since the current administrative procedure for the refund action requested by the final consumer companies towards supplier companies cannot be modified.
 
The MEF has thought of a possible alternative, which provides a procedure of 'spontaneous refund' in favor of the final consumer company by the supplier company. Later, the supplier company would have the possibility of requesting the refund from the Tax Authority, in order to relieve the Courts of thousands of lawsuits and relieving the parties involved (consumer and supplier companies) from long and expensive lawsuits. However, the MEF has already clarified that this alternative solution appears ‘very difficult to implement’, considering that Tax Authority could receive so many refund requests of amounts which have not been judicially ascertained.

At the same time, several experts have highlighted that, in this context, there is an unfair differentiation for the positions of the electricity self-producers (consortium and / or consumer-wholesalers): indeed, the aforementioned subjects, who paid the additional taxes directly to Tax Authorities, could act, necessarily against the Tax Authority, within 2 years from the payment of additional taxes in order to request the refund (and, clearly, the term of 2 years is time-barred), instead the final consumer companies can benefit from a 10 years limitation period provided for the legal civil action of recovery of the amounts unduly paid.
Nevertheless, these electricity self-producers are submitting a refund request to the Tax Authority in order not to waste the possibility of obtaining the amounts unduly paid, in the event that it is issued a unconstitutional ruling concerning the breach of equality principle between the different subjects involved in this topic.

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