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SOA certification obligation for the execution of the works

Le SOA certifications requests for works of the above amount i 516 thousand eurosinserted in the building bonus 110%, are a real legal “mess”. An amendment, approved by the committees of the Senate, which is examining the bill for the conversion (Senate Act No. 2564) of Legislative Decree no. 21/2022, generalizes to the private sector theobligation to own theattestation qualification by categories of works and by value classes, until now operating only in the public procurement sector.

The provision is launched, however, within the framework of multiple and well-founded doubts of constitutional legitimacy, leading to the distortion of the purpose of controlling the professionalism of the operator, which is misled and becomes an improper requirement necessary to consolidate a tax benefit for the client. : all this at the price of to shrink l’access from the businesses to the reference market, to put taxpayers in uncertainty and perhaps bonuses, as well as to effectively privatize the regulation of the sector, causing, on a stable basis, a increase of the overhead costs for businesses and, therefore, for clients.

The alternative would be an efficient verification system managed by the administrative authorities, but it seems that even in this sector we must resign ourselves to the impracticability of the public control function.

The fact is, however, that companies and clients interested in making use of the tax benefits sui construction works they have to deal with a discipline that distinguishes three periods:

– until the December 31, 2022 there will be no change;

– dal January 1, 2023 al June 30, 2023 the request for the SOA certification application will suffice;

– dal July 1, 2023 the obligation to possess the certification will be triggered.

But let’s see the detail of the maneuver.

First hypothesis: first half of 2023

For the purposes of the recognition of the envisaged tax incentives, starting from 1 January 2023 and up to 30 June 2023, theexecution of the works for an amount exceeding 516,000 euros, relating to the interventions envisaged by art. 119 or by art. 121, c. 2, DL no. 34/2020it must be entrusted:

– to companies in possessionat the time of subscription of the contract of contract or, in the case of subcontractors, of the subcontracting contract, of the necessary qualification ai (Article 84, Code of public contracts, Legislative Decree no. 50/2016);

– to companies which, at the time of subscription of the contract of contract or, in the case of subcontractors, of the subcontracting contract, they document to the client or the subcontractor thesuccessful subscription of a contract aimed at issuing the certificate of qualification.

In relation to this second hypothesis, the deduction relating to the expenses incurred starting from July 1, 2023 it is conditional on the issue of the qualification certificate to the executing company.

Second hypothesis: from the beginning of the second half of 2023

Starting from 1 July 2023, again for the purpose of recognizing tax incentives, theexecution of works for an amount exceeding 516,000 euros, must be entrusted exclusively to companies in possessionat the time of signing the contract or, in the case of subcontractors, of the subcontracting contract, of the qualification SOA.

Third hypothesis: until 31 December 2022.

It doesn’t take no certification per i jobs in course of execution on the date of entry into force from the conversion law of the DL no. 21/2022 and also to tender or subcontracting contracts having a certain date, pursuant to art. 2704 of the Civil Code, prior to the date of entry into force of the provision.

Problems of legitimacy of the norm

The law contrasts with the constitutionality principle of freedom of enterprise, since it unjustifiably prevents access to the market, leaving out valid and qualified operators, who do not have the certification.

Recognition of the certification does not add to and does not detract from the qualification, which must be possessed upstream and, therefore, the subordination of the business activity to a regime in fact authorization is in contrast with art. 41 of the Constitution and with the principles of European competition law.

The rule also conflicts with the principle of equalityif one thinks of the fact that it treats the taxpayer who turns to a qualified company, but without certification, in a worse manner, without reasonableness, compared to the taxpayer who relies on a qualified company with certification.

Furthermore, the profiles of illegality multiply if one thinks of the hypothesis of the company that has signed a contract to obtain the certification (one of the conditions effective starting from 1 January 2023) and who then, for whatever reason, does not obtain it: this causes the taxpayer innocenthelpless and without the possibility of remedying this deficiency.

The unreasonableness of the provision is highlighted by another profile: the amendment itself declares that the qualification is required “for the purpose of recognizing tax benefits” and, therefore, for a public tax interest, certainly commendable, but that has nothing to do with the quality of the work. The attestation of the qualification of the economic operator becomes one indirect instrument e incongruous from tax audit.

The above is proven by the same provision that programs the gradual effectiveness of the same starting from a certain future date (from 1 January 2023), thereby unequivocally testifying that the rationale of the rule is not to ensure the quality of the work (as inferable from the ‘obligation to possess the certification of the qualification), because otherwise it would also apply to the work in progress (possibly also subjected to a transitional regime to allow the acquisition of the certification).

The reality is that the legislator operates a misuse of purposes and claims to use for the purposes of fiscal check an institution located at warranty from the quality of workbetting on the fact that restricting the market means hopefully reserving it for honest economic operators, who do not engage in illicit machinations to obtain illicit advantages.

Moreover, there is no guarantee that this path can be realized, since the avoidance strategy can count on several predictable stratagems, such as the simulation of the amount of the work or the splitting of the same into many tasks, each sub-threshold. Without excluding a rush to stipulate contracts in the period up to the date of publication in the Official Gazette of the conversion law of Legislative Decree no. 21/2022.

Lastly, we cannot fail to note that the rule involves a increment of the costs of companies for the achievement and the maintenance from the qualificationswhose minimum level (a category in the first ranking) is around 6 thousand euros.

Not surprisingly, the amendment has provoked criticism from associations of small and medium-sized enterprises, which have estimated that about 80% of the companies involved will default on the new requirement.

The question remains whether there are alternatives to this cumbersome mechanism, without detracting from the qualifications market, which could well have been called upon to play a rewarding role and certainly not a role of selecting economic operators (one thing is to “qualify” other is select to exclude).

The alternatives, which are possible on paper, however, evoke the efficiency of controls by the administration which grants benefits, but which, in practice, obviously, cannot support the organizational costs ed cheap of an actual public system from verifications timely and comprehensive.

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