L’Agenzia delle Entrate ha fornito importanti chiarimenti in merito alle modalità di esercizio del diritto alla detrazione dell’IVA, nonché alle modalità di registrazione delle fatture di acquisto.
La relativa disciplina, infatti, contenuta negli artt. 19 e 25 del DPR 633/72, è stata modificata per effetto dell’art. 2 del DL 24.4.2017 n. 50 (conv. L. 21.6.2017 n. 96).
2 Decorrenza
Ai sensi dell’art. 2 co. 2-bis del suddetto DL 50/2017, le nuove disposizioni relative all’esercizio della detrazione IVA e alla registrazione dei documenti d’acquisto si applicano con riferimento alle fatture e alle bollette doganali emesse dall’1.1.2017.
Fatture emesse negli anni 2015 e 2016
La disciplina previgente continua ad applicarsi, pertanto, alle fatture emesse negli anni 2015 e 2016.
La circ. Agenzia delle Entrate 17.1.2018 n. 1 ha precisato che ciò vale anche per le operazioni la cui esigibilità sia sorta entro il 31.12.2016, anche se le relative fatture sono state ricevute successivamente a tale data.
3 .nuovi termini di esercizio della detrazione iva
Ai sensi dell’art. 19 co. 1 del DPR 633/72, il diritto alla detrazione dell’IVA sorge nel momento in cui l’imposta diviene esigibile.
3.1 Momento di esigibilità
Nella generalità dei casi, ai sensi dell’art. 6 co. 5 del DPR 633/72 l’imposta relativa alle cessioni di beni ed alle prestazioni di servizi diviene esigibile nel momento in cui le operazioni si considerano effettuate, ossia:
- alla stipula dell’atto che comporta il trasferimento della proprietà, ovvero la costituzione o il trasferimento di diritti reali di godimento sul bene, qualora si tratti di beni immobili;
- all’atto della consegna o spedizione, qualora si tratti di beni mobili;
- al momento del pagamento del corrispettivo, qualora si tratti di prestazioni di servizi.
Tuttavia, se anteriormente al verificarsi dei suddetti eventi viene emessa fattura o pagato in tutto o in parte il corrispettivo, l’operazione si considera effettuata (art. 6 co. 4 del DPR 633/72):
- alla data di emissione della fattura, limitatamente all’importo fatturato;
- alla data di pagamento del corrispettivo, limitatamente all’importo versato.
3.2 Termine ultimo di esercizio della detrazione
Fermo restando che l’esercizio del diritto alla detrazione è subordinato al realizzarsi dell’esigibilità dell’imposta, l’art. 2 del DL 50/2017 ha ridotto il termine entro il quale tale diritto può essere esercitato da parte dei soggetti passivi IVA.
In ogni caso, il diritto alla detrazione è esercitato in base alle condizioni esistenti al momento della nascita del diritto medesimo.
3.2.1 Disciplina previgente
In base alla disciplina previgente, il diritto in questione poteva essere esercitato, al più tardi, con la dichiarazione relativa al secondo anno successivo a quello in cui si era verificata l’esigibilità dell’imposta.
Esempio
Se una cessione di beni è stata effettuata in data 15.3.2016, l’IVA può essere detratta, al più tardi, nell’ambito della dichiarazione IVA relativa al 2018, da presentare entro il 30.4.2019.
3.2.2 Nuova disciplina
Ai sensi dell’art. 19 del DPR 633/72, nella formulazione vigente, invece, il termine ultimo per l’esercizio della detrazione coincide con la dichiarazione relativa all’anno in cui il diritto alla detrazione è sorto.
Esempio
Se una cessione di beni è stata effettuata in data 20.3.2017, l’IVA può essere detratta, al più tardi, nell’ambito della dichiarazione IVA relativa al 2017, da presentare entro il 30.4.2018.
4 nuovi termini di registrazione delle fatture d’acquisto
In base al riformulato art. 25 co. 1 del DPR 633/72, le fatture d’acquisto e le bollette doganali devono essere annotate sul registro IVA degli acquisti:
- anteriormente alla liquidazione periodica nella quale è esercitato il diritto alla detrazione;
- al più tardi, entro il termine di presentazione della dichiarazione annuale relativa all’anno di ricezione della fattura, con riferimento al medesimo anno.
5 Coordinamento tra i termini di detrazione e registrazione
Il disallineamento tra il termine di cui all’art. 19 del DPR 633/72, entro il quale esercitare la detrazione, e il termine di cui all’art. 25, entro il quale registrare la fattura d’acquisto, ha fatto emergere alcune criticità con particolare riferimento alla gestione delle fatture relative ad operazioni effettuate nell’anno d’imposta “X” e ricevute nell’anno d’imposta “X+1”.
5.1 Doppia condizione per l’esercizio della detrazione IVA
Stanti le difficoltà interpretative, l’Agenzia delle Entrate, con la circ. 17.1.2018 n. 1, ha chiarito che il coordinamento fra le due norme deve ispirarsi ai principi emersi nella giurisprudenza comunitaria (Corte di Giustizia UE 29.4.2004 causa C-152/02), secondo cui, ai fini dell’esercizio del diritto alla detrazione, occorre che siano verificati due presupposti:
- uno di natura sostanziale, ossia la circostanza che l’imposta sia divenuta esigibile;
- uno di natura formale, consistente nel possesso della fattura da parte del cessionario o committente.
Ne consegue che il dies a quo da cui decorre il termine per l’esercizio della detrazione deve essere individuato nel momento in cui si verifica tale duplice condizione.
Pertanto, nel caso di una fattura con IVA divenuta esigibile nel mese di dicembre 2017, ricevuta dal cessionario o committente nel 2018, la detrazione può essere esercitata, previa registrazione della fattura:
- nell’ambito delle liquidazioni IVA periodiche del 2018;
- al più tardi, nell’ambito della dichiarazione IVA relativa al 2018, da presentare entro il 30.4.2019.
La detrazione non può essere esercitata, invece, nell’ambito della liquidazione IVA del mese di dicembre 2017 (poiché in tale periodo non si era ancora verificato uno dei due presupposti per l’esercizio della detrazione IVA).
5.1.1 Esercizio della detrazione mediante la dichiarazione integrativa “a favore”
Per coloro che non avessero esercitato il diritto alla detrazione dell’IVA entro i termini sopra descritti, è comunque possibile “recuperare” l’imposta a credito mediante la presentazione di una dichiarazione integrativa “a favore”, entro il termine del 31 dicembre del quinto anno successivo a quello in cui è stata presentata la dichiarazione (fermo restando l’obbligo di regolarizzare l’acquisto e l’applicabilità delle sanzioni per l’irregolare registrazione delle fatture d’’acquisto).
5.1.2 Note di variazione in diminuzione
Ai sensi dell’art. 26 co. 2 del DPR 633/72, le note di variazione in diminuzione devono essere emesse, al più tardi, entro i termini per l’esercizio della detrazione IVA di cui all’art. 19 co. 1 del DPR 633/72.
Stante la nuova formulazione dell’art. 19, la circ. 17.1.2018 n. 1 chiarisce che l’emissione della nota di variazione deve avvenire entro la data di presentazione della dichiarazione IVA relativa all’anno in cui si è verificato il presupposto per operare la variazione in diminuzione (cfr. ris. Agenzia delle Entrate 18.3.2002 n. 89).
5.1.3 Casi particolari di differimento dell’esigibilità
Nell’ambito della circ. 17.1.2018 n. 1, l’Agenzia delle Entrate ha fornito specifici chiarimenti con riferimento all’esercizio della detrazione IVA da parte dei soggetti che applicano:
- il meccanismo dello split payment di cui all’art. 17-ter del DPR 633/72;
- il regime dell’IVA per cassa di cui all’art. 32-bis del DL 83/2012.
Split payment
Ai sensi dell’art. 3 del DM 23.1.2015, l’imposta relativa alle operazioni soggette a split payment diviene esigibile, di regola, al momento del pagamento del corrispettivo, ferma restando la possibilità, da parte dell’acquirente, di optare mediante comportamento concludente per l’anticipazione dell’esigibilità:
- al momento di ricezione della fattura;
- al momento di registrazione della fattura medesima.
Tuttavia, laddove si applichi la regola generale (in quanto il pagamento è stato effettuato anteriormente alla ricezione/registrazione della fattura, ovvero il soggetto passivo non ha optato per l’anticipazione dell’esigibilità), viene meno l’obbligo di annotare la fattura di acquisto entro il termine di presentazione della dichiarazione relativa all’anno di ricevimento della stessa.
Infatti, in caso di applicazione del meccanismo dello split payment, in deroga al principio generale di cui all’art. 25 del DPR 633/72, l’annotazione del documento deve avvenire entro il termine fissato per la presentazione della dichiarazione relativa all’anno in cui l’imposta diverrà esigibile (con il pagamento del corrispettivo), ancorché la fattura sia stata ricevuta in un periodo d’imposta precedente.
Regime dell’IVA per cassa
Per i soggetti che, in presenza dei requisiti, adottano il regime dell’IVA per cassa, il momento di esigibilità dell’imposta coincide, in linea generale, con il momento in cui il corrispettivo viene effettivamente pagato, sia con riferimento alle operazioni attive che con riferimento alle operazioni passive.
A tal proposito, la circ. 17.1.2018 n. 1 chiarisce che il diritto alla detrazione deve essere “ancorato” al peculiare momento di esigibilità previsto nell’ambito del regime speciale, vale a dire:
- al momento in cui il corrispettivo viene pagato;
- o, comunque, decorso un anno dal momento di effettuazione dell’operazione.
Ad esempio, se un soggetto che si avvale del regime dell’IVA per cassa effettua un acquisto nel mese di dicembre 2017 e versa il corrispettivo nel mese di aprile 2018 (posto che sia anche in possesso della fattura d’acquisto) potrà operare la detrazione:
- a partire dalla liquidazione del mese di aprile 2018;
- al più tardi, nell’ambito della dichiarazione IVA relativa al 2018 (entro il 30.4.2019).
5.2 Modalità di registrazione delle fatture
Con la circ. 17.1.2018 n. 1, l’Agenzia delle Entrate ha fornito anche chiarimenti di natura operativa circa le regole di registrazione delle fatture d’acquisto, in applicazione dei nuovi termini per l’esercizio della detrazione IVA.
In particolare, è stato chiarito che, con riferimento a un acquisto effettuato nel 2017 con fattura ricevuta entro il 31.12.2017, la registrazione può avvenire, al più tardi, entro il 30.4.2018.
Sotto il profilo operativo:
- se la registrazione viene effettuata nel 2017 si applicano le regole ordinarie di annotazione sul registro degli acquisti;
- se la registrazione viene effettuata nei primi 4 mesi del 2018 (tra l’1.1.2018 e il 30.4.2018) occorre istituire un’apposita sezione nel registro IVA degli acquisti, relativa alle fatture ricevute nel 2017, per le quali l’IVA non può essere detratta nell’ambito delle liquidazioni periodiche, ma concorre alla determinazione del saldo IVA 2017.
Nell’ipotesi di un acquisto effettuato nel mese di dicembre 2017, per il quale la fattura viene ricevuta nel 2018, la registrazione può invece avvenire, al più tardi, entro il 30.4.2019 (termine di presentazione della dichiarazione relativa all’anno di ricezione della fattura).
Coerentemente con quanto chiarito per le fatture ricevute nel 2017, la registrazione del documento ricevuto nel 2018 dovrà essere effettuata in un’apposita sezione del registro degli acquisti soltanto se l’annotazione avviene nei primi 4 mesi del 2019.
Viene riconosciuta la possibilità di adottare soluzioni gestionali e informatiche diverse da quella consistente nell’istituzione del registro IVA sezionale, a condizione che tali soluzioni garantiscano in ogni caso i requisiti per una corretta tenuta della contabilità, consentendo un puntuale controllo da parte dell’Amministrazione finanziaria.
Momento di ricezione della fattura
La ricezione della fattura d’acquisto da parte del cessionario o committente, ove non risultante da posta elettronica certificata o da altri sistemi che attestino la ricezione del documento, deve emergere dalla corretta tenuta della contabilità (es. numerazione progressiva dei documenti ricevuti).
5.3 inapplicabilità delle sanzioni
Sono fatti salvi i comportamenti adottati dai soggetti passivi IVA con riferimento alla liquidazione IVA periodica relativa al mese di dicembre 2017 (da effettuarsi entro il 16.1.2018 per i contribuenti mensili), ove detti comportamenti siano difformi dalle indicazioni fornite dall’Agenzia delle Entrate con la circ. 17.1.2018 n. 1.
Non saranno sanzionabili, dunque i soggetti passivi IVA che, avendo ricevuto entro il 16.1.2018 fatture relative ad operazioni con IVA esigibile nel 2017, hanno computato l’imposta a credito nella liquidazione relativa al mese di dicembre 2017.
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