{"id":5998,"date":"2026-07-15T15:38:24","date_gmt":"2026-07-15T13:38:24","guid":{"rendered":"https:\/\/www.terrinassociati.com\/tax-credit-rs-the-frascati-manual-cannot-be-applied-retroactively\/"},"modified":"2026-07-15T15:38:24","modified_gmt":"2026-07-15T13:38:24","slug":"tax-credit-rs-the-frascati-manual-cannot-be-applied-retroactively","status":"publish","type":"post","link":"https:\/\/www.terrinassociati.com\/en\/tax-credit-rs-the-frascati-manual-cannot-be-applied-retroactively\/","title":{"rendered":"R&D tax credit: the Frascati Manual cannot be applied retroactively"},"content":{"rendered":"

With judgment no. of July 14, 2026, 5627, Section VI of the Council of State addresses the issue regarding the usability of the Frascati Manual criteria to evaluate activities carried out in tax periods prior to 2020, with reference to the research and development tax credit ex<\/em> Art. 3 of Decree-Law 145\/2013. The ruling confirms the decision of the Lazio Regional Administrative Court and dismisses the appeal filed by the MIMIT, stating that the more restrictive criteria developed by the Frascati Manual cannot be retroactively<\/strong> applied<\/strong> to activities carried out under the previous regulations.<\/p>\n

The case examined<\/strong><\/p>\n

The dispute originates from the denial by the MIMIT of a certification request regarding the tax credit for research and development, innovation, and design activities. The Lazio Regional Administrative Court had annulled the ministerial measure, deeming the retroactive application of the Frascati Manual criteria unlawful. The Ministry appealed this decision, arguing that the parameters used were already based on European regulations and the original wording of the tax incentive; the Council of State did not agree with this approach.<\/p>\n

The applicable regulations must be those in force during the tax period<\/strong><\/p>\n

The central principle affirmed by the judgment is that of tempus regit actum<\/em>. Eligibility for the tax credit must be verified based on the regulations in force<\/strong> during the period in which the activities were actually carried out. Consequently, for tax periods prior to 2020, reference must be made to Art. 3 of Decree-Law 145\/2013, Ministerial Decree of May 27, 2015, and the administrative practice pro tempore<\/em>.<\/p>\n

According to the Council of State, the scope of eligible activities was then fully defined by the aforementioned provisions, without the possibility of automatically introducing further requirements derived from subsequent sources. The previous regulations specifically included fundamental research, industrial research, and experimental development activities, expressly excluding only ordinary or periodic changes made to existing products, processes, production lines, or services.<\/p>\n

Oslo Manual and Frascati Manual: two different approaches<\/strong><\/p>\n

A particularly relevant passage of the ruling concerns the comparison between the Oslo Manual and the Frascati Manual. The Council of State notes that, in the first application phase of the tax credit, the Agency itself had referred to an approach consistent with the Oslo Manual<\/strong>, which was more oriented toward the activity’s ability to improve the company’s products and processes. In this perspective, it was not necessarily required for the project to result in an advancement of scientific or technological knowledge for the entire reference sector.<\/p>\n

Conversely, the Frascati Manual<\/strong>, in its 2015 version, requires the simultaneous presence of five criteria: novelty, creativity, uncertainty, systematicity, and transferability\/reproducibility<\/strong>. In particular, the novelty requirement is understood in a more rigorous sense, as cognitive progress compared to the general state of the art and not just as internal innovation within the company.<\/p>\n

The interpretative change since 2018 and the regulatory shift from the 2020 tax year<\/strong><\/p>\n

The judgment also reconstructs the evolution of administrative practice. Only starting from 2018 did the Ministry, with Circular no. 59990, and subsequently the Revenue Agency, with Resolution no. 40\/E of April 2, 2019, identify the five criteria of the Frascati Manual as the reference for qualifying research and development activities. For the Council of State, this approach was innovative in nature<\/strong> and not merely recognitory. It was not, therefore, a simple clarification of criteria already implicitly contained in the 2013 regulations<\/strong>, but rather the introduction of a more restrictive paradigm than the one applied in the initial phase of the incentive.<\/p>\n

The decisive step is then represented by Art. 1, paragraph 200 of Law 160\/2019. According to the Council of State, it is only with this provision, applicable from the tax period following the one in progress on December 31, 2019, that the legislator formally adopted the new qualification system for research and development activities. The provision, in fact, is not interpretative but innovative in nature, with the consequence that the specific requirements of the Frascati Manual can only become binding starting from 2020. <\/strong>The need for an express legislative intervention constitutes, according to the judges, confirmation that these criteria were not already automatically applicable to the previous version of the tax credit.<\/p>\n

The operational consequences of the judgment<\/strong><\/p>\n

The decision is particularly important for litigation and certification procedures regarding tax credits accrued before 2020. For those years, the Administration cannot deny the incentive solely because the project does not fully satisfy the five criteria of the 2015 Frascati Manual.<\/p>\n

The judgment does not, of course, entail the automatic recognition of every credit prior to 2020. Companies must still demonstrate that the activities carried out fell within the eligible categories provided by the regulations in force at the time and that they were not routine interventions. The point affirmed by the Council of State concerns the legal parameter to be used: the credit cannot be disallowed by retroactively applying requirements introduced or consolidated only at a later date.<\/p>\n","protected":false},"excerpt":{"rendered":"

With judgment no. of July 14, 2026, 5627, Section VI of the Council of State addresses the issue regarding the usability of the Frascati Manual criteria to evaluate activities carried out in tax periods prior to 2020, with reference to the research and development tax credit ex Art. 3 of Decree-Law 145\/2013. The ruling confirms […]<\/p>\n","protected":false},"author":3,"featured_media":5999,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[],"tags":[],"class_list":["post-5998","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry"],"_links":{"self":[{"href":"https:\/\/www.terrinassociati.com\/en\/wp-json\/wp\/v2\/posts\/5998","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.terrinassociati.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.terrinassociati.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.terrinassociati.com\/en\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/www.terrinassociati.com\/en\/wp-json\/wp\/v2\/comments?post=5998"}],"version-history":[{"count":0,"href":"https:\/\/www.terrinassociati.com\/en\/wp-json\/wp\/v2\/posts\/5998\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.terrinassociati.com\/en\/wp-json\/wp\/v2\/media\/5999"}],"wp:attachment":[{"href":"https:\/\/www.terrinassociati.com\/en\/wp-json\/wp\/v2\/media?parent=5998"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.terrinassociati.com\/en\/wp-json\/wp\/v2\/categories?post=5998"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.terrinassociati.com\/en\/wp-json\/wp\/v2\/tags?post=5998"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}