Milan, 5 May 2020 – Grant Thornton successfully defended a major operator in the renewable energy industry, specifically in the realization of solar power plants, in the proceedings before the second instance Court of Lazio for the purpose of obtaining a VAT refund, paid during the start up phase of some subsidiaries of the same group. The Grant Thornton team was made up of Alessandro Dragonetti, Giulio Tedeschi, and Simonetta La Grutta - the project leading partners -, Marco Pane, Alessandro Foderà and Chiara Altare.
Through sentence no. 791 od 2020 and by applying the recent case law of the Court of Justice of the European Union and the Court of Cassation, the second instance Court of Lazio has sanctioned the right to deduct VAT (and, subsequently, to claim it for refund) related to the start-up costs, even if the started business activity does not succeed, due to causes that are independent from the entrepreneur’s intention.
In the case at issue, the introduction of some regulations, including Legislative decree no. 28/2011 (so-called “Decreto Romani”) and feed-in tariffs following no. iii, which have provided a reduction in the incentivization regime for the operators in the industry, have made the onerous proects for the realization of plants – already started in Italy – no more profitable.
The peculiarity of the matter concerns the fact that the right to deduct VAT in compliance with the principle of VAT neutrality must be assessed prospectively and, in particular, recognized with reference to all expenses that are potentially suitable to start a certain business activity, even lacking income-generating transactions.