EXCISE DUTIES ON ENERGY: REQUEST FOR ADDITIONAL REFUND OF EXCISE DUTY 2010-2011

Ruling No 27099/19

The Italian Supreme Court with ruling no. 27099/19 established the illegitimacy of the provincial excise duties on electricity paid for the two-year period 2010-2011, then abolished from 2012 with a decree of January 5.

In the Court’s view, these duties would be contrary to European law since, unlike the legislative intentions of “social” nature, their purpose was merely a need for revenue and budget.

Who can apply for refund

According to the ruling, there are two different types of relationship: (i) the tax relationship between the service supplier and the tax authorities and (ii) the private relationship between the supplier and the consumer/company. In this respect, the supplier is the only subject entitled to file a claim for reimbursement with the tax authorities, while the company can take ordinary action against the supplier to recover undue payments; only if the ordinary action becomes impossible or excessively onerous, or for example if the supplier has gone bankrupt, the company can directly apply to the tax authorities for reimbursement, in compliance with the principle of effectiveness.

Within which terms is it possible to request a refund

Since the relationship between the supplier and the company is governed by civil law, the action for recovery of the undue payment is prescribed within 10 years from the payment of the undue payment. Considering that the period concerned is the two-year period 2010-2011, this term is expiring.

How to request a refund

Companies interested in recovering the amount of the additional provincial excise duties paid on electricity consumption in 2010 and 2011 will have to act quickly through these necessary steps:

1. send immediately to the supplier by registered e-mail or registered letter with acknowledgement of receipt a letter of formal notice with the request for reimbursement of the amounts improperly paid in the two-year period 2010-2011;
2. if the request for reimbursement is not accepted by the supplier, it will be necessary to take a civil legal action for the recovery of the undue payment before the ordinary Judge, who will have to ascertain the undue payment;
3. if the supplier is sentenced in court to pay the sums requested with the claim for reimbursement, he could in turn proceed with the action for reimbursement against the tax authorities.

Criticalities

The main problem with this ruling is that, according to its provisions, the supplier will in turn be able to claim a refund from the tax authorities once all levels of judges have passed. Therefore, the only way for the supplier to obtain certainty of reimbursement is to oppose the company by legal means and appeal to the Italian Supreme Court, which must rule on the supplier’s obligation to reimburse the company and, then, allow the supplier to request reimbursement from the tax authorities.

LDP remains at your disposal to help you in this area and to assess the convenience and possible actions to be taken.