The Supreme Court has recently ruled on an issue that has been controversial in recent times, concluding that form 390, contrary to the criterion it had previously upheld, does not have the effect of interrupting the limitation period.
In its recent Judgment number 987/2020, of 18 May 2020, it changes its criterion on the basis that, with the annual summary return, it is no longer necessary to provide each of the copies of the various self-assessment forms for each period filed throughout the year, which constitutes, in the words of the Supreme Court "a fundamental difference that may lead to the annual summary return being treated differently from the treatment granted by the Supreme Court in the aforementioned Judgments"
For this reason, the High Court aligns itself with the criterion of the Central Economic-Administrative Court, which had been denying in its decisions that the annual VAT summary return (form 390) had the effect of interrupting the limitation period
Conclusions of the Supreme Court Judgment
Specifically, the Supreme Court bases its reasoning on several points that the TEAC had been pointing out and with which it fully agrees:
- The annual summary return does not break down the data by quarters or months, so it is not possible to differentiate which part corresponds to each assessment period.
- The way form 390 itself is designed does not allow the Administration to access information giving it "an exhaustive knowledge of the activity carried out by the taxpayer", being rather "a mere arithmetic operation consisting of the sum of the results of the boxes corresponding to the various amounts of output VAT, or of deductible input VAT".
- The annual summary form has no assessment content, since the tax amounts have been paid with the corresponding periodic returns, its main purpose being to provide annual information to be applied to the following year.
Ultimately, therefore, the Supreme Court concludes in its Third Legal Ground that: "(i) the lack of assessment content of the annual summary return, (ii) the debatable 'ratifying' nature of the previous assessments and, above all, (iii) the change in the legal regime in that the quarterly assessments must no longer be attached to the form (the Supreme Court's essential argument) require the legal doctrine to be modified and to state that form 390 does not have the effect of interrupting the Administration's right to determine the tax debt of the monthly or quarterly periods of the corresponding annual period."
