Tax Observatory › Assessment and litigation › Costs of guarantees for VAT refunds: statutory interest is owed, but from the date the claim becomes due and payable

Costs of guarantees for VAT refunds: statutory interest is owed, but from the date the claim becomes due and payable

Italian Court of Cassation, Fifth Civil Division, judgment No. 27979 of 28 October 2026 (and its twin judgment No. 27980): statutory interest under Article 1282 of the Civil Code is due on the reimbursement of the costs of guarantees provided under Article 38-bis of Presidential Decree No. 633/1972. Article 8, paragraph 4, of Law No. 212/2000 and the flat-rate reimbursement under Article 7 of Law No. 167/2017 define only the principal obligation. Interest runs from the express acknowledgment of the tax credit or from expiry of the time limits for assessment, not from the provision of the guarantee or the payment of the premium.

The obligation of the tax authorities to reimburse the costs of the guarantees (fideiussioni) provided to obtain a VAT refund is a debito di valuta (a debt for a fixed sum of money) and bears statutory interest by operation of law (Article 1282 of the Civil Code). The Court of Cassation restated this in twin judgments No. 27979 and No. 27980 of 28 October 2026, following its judgment No. 198/2026. Article 8, paragraph 4, of Law No. 212/2000 and the flat-rate reimbursement of 0.15% per year under Article 7 of Law No. 167/2017 determine only the subject matter of the principal obligation and do not exclude the ancillary obligation to pay interest. On the starting date, however, the taxpayer’s argument is rejected: interest accrues from when the claim becomes due and payable, that is, from the express acknowledgment of the tax credit or from expiry of the time limits for assessment, not from payment of the premium.

The case

A foreign company sought reimbursement of the costs of the insurance guarantees (polizze fideiussorie) provided under Article 38-bis for its VAT refunds for 2010 to 2016, with interest from the date on which the guarantees were provided. Ruling on the initial appeal against the silenzio-rifiuto (implied refusal arising from the authority’s failure to respond), the Commissione tributaria provinciale (provincial tax court) of Rome found in its favour. On appeal, the two judgments reached opposite outcomes. For 2014 (judgment No. 27979), the Corte di giustizia tributaria di secondo grado (second-instance tax court) of Lazio declared that there was no longer any matter in dispute as to the principal sum (cessata materia del contendere), since the tax office had acknowledged that sum during the proceedings, and denied interest, treating Article 8, paragraph 4, as a special provision derogating from Article 1282 of the Civil Code. For the whole period (judgment No. 27980, on the tax office’s appeal on points of law), the court upheld the award of interest from the date on which the guarantees were provided.

The rule of law

The Court of Cassation sets aside both judgments and refers the cases back to the Corte di giustizia tributaria di secondo grado of Lazio, differently constituted. In judgment No. 27979 it upholds the company’s second ground of appeal “to the extent set out in the reasoning” and dismisses the first. In judgment No. 27980 it upholds the tax office’s main appeal on points of law, solely as regards the starting date of interest, and dismisses the company’s conditional cross-appeal. The principle of law, already stated by Court of Cassation judgment No. 198/2026 in proceedings between the same parties and restated here, reads as follows: from the time when the claim became due and payable, statutory interest under Article 1282 of the Civil Code is due on the tax authorities’ debt for the reimbursement of guarantee costs incurred under Article 38-bis, paragraph 1, of Presidential Decree No. 633/1972; Article 8, paragraph 4, of Law No. 212/2000 defines what is to be reimbursed and has no bearing on interest. From the outset, the reimbursement concerns a specified nominal sum, so it is a debito di valuta. Article 7 of Law No. 167/2017 does not alter that analysis: it does not apply ratione temporis (it applies to refund requests made from the VAT return for 2017 onwards and to quarterly refund applications, or istanze infrannuali, from the first quarter of 2018 onwards) and, in any event, it quantifies the principal obligation on a flat-rate basis, leaving the ancillary obligation intact.

On the starting date, the Court rejects the taxpayer’s argument. The premium was paid to a third party under a valid contract; the tax office is not required to return sums it never received, but to reimburse expenditure incurred for a service provided by others; Article 2033 of the Civil Code (recovery of payments not due) therefore does not apply. The claim becomes due and payable when the tax office expressly acknowledges the tax credit or when the time limits for assessing the refunded tax expire (the Court refers to Court of Cassation judgment No. 20024/2023).

On procedure, the tax office’s challenge to the interest claim, raised only on appeal, is a mere defence (mera difesa), not a plea in the strict sense (eccezione in senso stretto), and does not infringe Article 57, paragraph 2, of Legislative Decree No. 546/1992. In tax litigation, a party that confined itself to a general challenge at first instance may set out its specific grounds on appeal.

Practical consequences

For VAT refunds claimed today, a guarantee is still required for amounts above EUR 30,000 in the cases listed in Article 38-bis, paragraph 4 (business carried on for less than two years, significant assessments in the previous two years, absence of the visto di conformità (certification of the return by an authorised professional) or of the statement in lieu of an affidavit (dichiarazione sostitutiva), cessation of business). The guarantee runs for three years from payment of the refund or, if shorter, for the period remaining until the time limit for assessment expires (paragraph 5). The flat-rate reimbursement is 0.15% of the guaranteed amount for each year of the guarantee, paid when the time limit for issuing a notice of adjustment or assessment expires or, if a notice is issued, when it is finally established that the refund was due. For a refund of EUR 400,000 claimed in the VAT return filed in 2025 and guaranteed for three years, the flat-rate reimbursement is EUR 600 per year, EUR 1,800 in total. The time limit for assessment expires on 31 December 2030 (Article 57 of Presidential Decree No. 633/1972); if the tax office does not pay, interest runs from 1 January 2031 at the statutory rate set year by year (Article 1284 of the Civil Code).

For guarantees that predate the flat-rate regime, the actual cost is reimbursed, as documented by the premium receipts, with interest from the same date on which the claim becomes due and payable; taxpayers who claimed interest from payment of the premium must recalculate it.

Two points remain open. The “express acknowledgment of the tax credit” does not necessarily coincide with payment of the VAT refund: in our view, the application should be argued on both grounds, with the tax office’s decision enclosed where one exists. Nor does the judgment clarify whether, under the Article 7 regime, the taxpayer may claim the actual cost where it exceeds the flat-rate reimbursement: ratione temporis, that question fell outside the proceedings.

In practice

• Once the time limit for assessment of the refunded year has expired, the taxpayer promptly files an application for reimbursement of the guarantee costs (or of the flat-rate reimbursement) and claims statutory interest from the date of expiry; if no reply is received within ninety days, the taxpayer may bring an initial appeal against the silenzio-rifiuto (Article 21, paragraph 2, of Legislative Decree No. 546/1992).
• Counsel calculates interest from the date on which the claim became due and payable, not from payment of the premium; if the tax office disputes only the calculation, counsel considers the dispute-avoidance procedures (istituti deflattivi), including judicial settlement (conciliazione), before judgment.
• The taxpayer keeps the policy, the dated premium receipts, proof that the guarantee was delivered to the tax office, the receipt for the VAT refund and the calculation of the time limit for assessment, so that they can be produced in court.

Frequently asked questions

From when does interest run on the reimbursement of guarantee costs?

From the time when the claim becomes due and payable, that is, from the tax office’s express acknowledgment of the tax credit or from expiry of the time limits for assessing the refunded tax. Not from payment of the premium, because this is not a case of recovery of a payment not due (indebito oggettivo, Article 2033 of the Civil Code).

Does the flat-rate reimbursement of 0.15% exclude interest?

No. Article 7 of Law No. 167/2017 quantifies the principal obligation on a flat-rate basis and sets the time of payment; if the tax office pays late, statutory interest under Article 1282 of the Civil Code accrues on the flat-rate reimbursement.

What changes from 1 January 2027 with the consolidated Acts?

From 1 January 2027 Legislative Decree No. 175/2024 applies (Article 131), repealing Legislative Decree No. 546/1992 (Article 130). Article 57 is reproduced in Article 111 and Article 21 in Article 67 of the consolidated Act, without change in content; the distinction between a new plea and a mere defence remains relevant. From the same date the consolidated VAT Act (Legislative Decree No. 10 of 19 January 2026) replaces Article 38-bis of Presidential Decree No. 633/1972 and paragraphs 1 and 2 of Article 7 of Law No. 167/2017 with its own Article 116, which also reproduces the flat-rate reimbursement (paragraphs 4, 5 and 12); the time limit for assessment under Article 57 of Presidential Decree No. 633/1972 moves, unchanged, to Article 293, paragraph 1, of the consolidated Act on compliance and assessment (Legislative Decree No. 141 of 5 August 2026). The substantive rules do not change.

Sources

Italian Court of Cassation, Fifth Civil Division, judgment No. 27979 of 28 October 2026 (public hearing of 14 October 2026, Presiding Judge Perrino, Reporting Judge Hmeljak, ECLI:IT:CASS:2026:27979CIV), full text

Italian Court of Cassation, Fifth Civil Division, judgment No. 27980 of 28 October 2026 (same hearing, same panel), full text

Court of Cassation judgments No. 198/2026, No. 20024/2023, No. 12651/2018, No. 7434/2021 and No. 31224/2017, as cited in the reasoning

Presidential Decree No. 633 of 26 October 1972, Articles 38-bis and 57, text in force on 2 November 2026 (Normattiva)

Law No. 212 of 27 July 2000, Article 8, paragraph 4, text in force on 2 November 2026 (Normattiva)

Law No. 167 of 20 November 2017, Article 7, text in force on 2 November 2026 (Normattiva)

Civil Code (Royal Decree No. 262/1942), Articles 1282, 1284 and 2033, text in force on 2 November 2026 (Normattiva)

Legislative Decree No. 546 of 31 December 1992, Articles 21 and 57, text in force on 2 November 2026 (Normattiva)

Legislative Decree No. 175 of 14 November 2024, Articles 67, 111, 130 and 131 (Official Gazette No. 279 of 28 November 2024, Ordinary Supplement No. 40; Article 131 in the text in force from 31 December 2025: application deferred to 1 January 2027 by Decree-Law No. 200/2025, converted into law by Law No. 26/2026)

Legislative Decree No. 10 of 19 January 2026, Article 116 (Official Gazette No. 24 of 30 January 2026, Ordinary Supplement No. 4; applicable from 1 January 2027); Legislative Decree No. 141 of 5 August 2026, Article 293, paragraph 1 (applicable from 1 January 2027)