News · Criminal law · – 12 November 2026
Legislative Decree 148/2026 introduces three optional regimes developed by the OECD, applicable to fiscal years beginning on or after 1 January 2026, and extends joint and several liability for the domestic minimum top-up tax. For those who sign the group’s returns, one question remains open: whether the tax-return offences under Legislative Decree 74/2000 apply to the minimum tax.
The framework. Two of the regimes, subject to conditions and an election, reduce to zero the income inclusion rule top-up tax (imposta minima integrativa) or the undertaxed profits rule top-up tax (imposta minima suppletiva), but not the domestic minimum top-up tax (imposta minima nazionale): the qualified side-by-side regime reduces both to zero (Article 39-bis, paragraph 2), the qualified ultimate parent entity regime only the latter (paragraph 3). The third regime eliminates only the top-up tax corresponding to qualified tax incentives, within the substance-based cap (paragraphs 4 and 5). Implementing rules are left to a decree of the Minister of Economy and Finance, which Article 11, paragraph 4, required to be adopted within ninety days of entry into force. The original text already imposed joint and several liability for the domestic minimum top-up tax on group entities other than investment entities and on joint ventures located in Italy. Liability now also extends to stateless flow-through entities created under Italian law and to joint venture subsidiaries (Article 18, paragraphs 7 and 8-bis). Penalties are unchanged (Article 51, paragraph 9, and Article 53, paragraphs 4 and 5, of Legislative Decree 209/2023).
Why it matters. The GloBE Information Return (comunicazione rilevante) and the minimum tax return, first due by 30 June 2026 for groups whose fiscal year is the calendar year (Article 53, paragraph 1, and Article 58), rely on data supplied by other group entities, including foreign ones. Legislative Decree 209/2023 does not refer to Legislative Decree 74/2000: Article 53, paragraph 4, applies the income tax rules on assessment, penalties, collection and litigation “in so far as compatible”. It remains an open question whether the tax-return offences, which concern income taxes and VAT, extend to the minimum tax; we are not aware of any case law or official guidance on the point. In our view, the cross-reference in Article 53 and the fact that, from 2027, the rules will form part of the consolidated Act on income taxes weigh in favour; the principle of legality and the prohibition of analogy to the detriment of the accused (in malam partem) weigh against.
In practice. The jointly and severally liable entities must designate the one responsible for the domestic minimum top-up tax and allocate the burden among themselves (Article 18, paragraph 7). In our view, whoever signs the information return and the tax return should keep a record of where the group data came from and of the checks carried out. For the first three fiscal years, penalties are not imposed except in cases of wilful misconduct or gross negligence (Article 53, paragraph 5), and Article 51, paragraph 9, halves the penalties relating to the information return for the same period. From 1 January 2027 the rules will be incorporated into the consolidated Act on income taxes (Legislative Decree no. 117 of 19 June 2026), where Articles 18, 39-bis and 53 will become Articles 318, 339-bis and 353. On internal controls, see our note on corporate criminal law.
Frequently asked questions.
Do the new regimes reduce the domestic minimum top-up tax to zero?
Not the first two, which concern only the income inclusion rule and undertaxed profits rule top-up taxes; the third affects the portion of top-up tax corresponding to qualified tax incentives.
Who is jointly and severally liable for the domestic minimum top-up tax?
Group entities located in Italy other than investment entities, and joint ventures; following Legislative Decree 148/2026, also stateless flow-through entities created under Italian law and joint venture subsidiaries.
Is filing an inaccurate minimum tax return a criminal offence?
This is an open question: Legislative Decree 209/2023 does not refer to Legislative Decree 74/2000 and applies the income tax rules only in so far as compatible; we are not aware of any case law or official guidance.
Summary note by the CommercialistiAvvocati network, based on specialised legal and practice sources. The text does not reproduce original contributions and does not constitute professional advice.