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Salvasport tax: 'Arrears not owed by betting licensees'

According to the Council of State, the arrears of the extra tax to feed the so-called "Salvasport fund" requested by the Customs and Monopolies Agency are not due.

The Council of State, with the Sentence published last February 26, accepted the appeals presented by some betting licensees against the ruling of the Lazio TAR of August 2023, which had confirmed the validity of the Directorial Determination prot. n.10337/RU of 5 January 2023 with which the Customs and Monopolies Agency had asked sector operators for the arrears of the 0.5% levy on the collection of bets to feed the so-called "Salvasport Fund", as foreseen by the Legislative Decree no. 34/2020 (so-called Relaunch Decree)  containing "urgent measures related to the epidemiological emergency from Covid19" converted with amendments by Law no. 77/2020 and in force until 31 December 2021. The dispute in question, underlined by the judges of Palazzo Spada, does not concern the payment of the amounts due, for the reference period, until the aforementioned allocation limits are reached, necessary to cover the cost of establishing and operating the Fund (all amounts already fully paid and of which the concessionaires do not dispute the debt), but instead concerns the additional amounts requested from them in payment, always calculated at a percentage of 0.5% for the period of reference, but on all the overall revenue from the collection of bets, regardless of whether the Fund thresholds have already been reached. In particular, we read in the sentence, "in the opinion of the Board, the legal considerations that can be drawn first of all from the national regulatory system, and then also from the Euro-unitary one, on the basis of the principles of the Treaties, as constantly interpreted by the jurisprudence of the Court of Justice". In fact, according to the Council of State, there exist "multiple elements, both textual and systematic, such that there should be no doubts regarding the fact that the only correct interpretation of the provision contained in the article 217 of Law Decree no. 34/2020 is the one that the Financial Administration followed during the first application phase of the rule, which was then abandoned by the same and replaced by the one, opposed and contested here, to be considered not compliant with the law, as the necessary 'legal basis' of the tax claim". Furthermore, for the Council of State, "the need to relaunch the sports sector and, in particular, the world of small sports and amateur associations that operate there, was a need so felt by the State that it led it to introduce, in the last part of the second paragraph of the above article 217, the provision that 'If, in the years 2020 and 2021, the amount of revenue corresponding to the percentage referred to in this paragraph is lower than the sums registered in the Fund pursuant to the previous period, it is correspondingly reduced the quota referred to in article 1, paragraph 630 of law 30 December 2018, n. 145", an event which did not occur in the case in question as "the Fund's allocation thresholds have been largely reached". Spada, therefore, "does not see the reason to subject the State concessionaires to a contribution effort for solidarity needs (it must be reiterated, not disputed by them within the limits necessary to reach the Fund's allocation thresholds) greater than that at which would subject the State itself in the event that the aforementioned thresholds were not reached, since in this case it is certain, by express provision of law, that the corresponding reduction of the quota referred to in article 1, paragraph 630 of the law of 30 December 2018 , n. 145 would operate only until the thresholds are reached, and no further. Which further confirms that the only possible reading of the regulatory provision contained in the art. 217, legislative decree no. 34/2020, in the connection between the first and second paragraph, is exclusively that which rests on the principle of parallelism between the withdrawal and the endowment of the fund, with the consequence, as a definitive corollary, that the limit on the allocation of the Fund also represents the necessary implicit limit to the withdrawal, on the basis of the teleological link pursued by the legislator".