Several months after the release of the initial draft (originally named the “Energy Decree” and subsequently renamed the “Energy Bills Decree”), Decree-Law No. 21/2026 (the “Decree”) finally entered into force on February 21 of this year, introducing a number of regulatory and legislative changes of considerable significance for the energy sector.
Given the extent of the innovations introduced, through this column, Energy Law Italy continues its analysis of the key measures set forth by the Decree, dedicating an analysis to each legislative amendment with particular focus on their potential practical implications (the other contributions are available at the following link).
In this analysis, we focus on the Decree's tax-related measures and in particular those concerning the IRAP rate applicable to energy sector operators.
***
Temporary increase of the IRAP rate
Specifically, Article 3 of the Decree – entitled “Provisions concerning the IRAP rate for energy sector enterprises” – provides for a two-percentage-point increase in the IRAP rate set forth in Article 16, paragraphs 1 and 1-bis, of Legislative Decree No. 446/97 establishing the regional tax on productive activities (IRAP), for the 2026 and 2027 tax years.
The surcharge applies to entities that predominantly carry out certain activities attributable to the energy sector, as identified by specific ATECO codes listed in Table 1 annexed to the Decree (further detailed below).
From an operational standpoint, the measure effectively entails:
an increase in the ordinary rate from 3.9% to 5.9% for the generality of affected taxpayers.
an increase from 4.2% to 6.2% in the rate applied to concessionaire enterprises, other than those engaged in the construction and management of highways and tunnels.
Effective Date
The surcharge, which is expressly temporary and non-structural in nature, applies starting from the tax year following the one in progress as of 31 December 2025.
For entities whose fiscal year coincides with the calendar year, the increase will therefore take effect as of 1 January 2026.
Subjective Scope and the Predominance Criterion
The subjective scope of the surcharge is determined on the basis of a “predominance” criterion, defined by reference to the “predominant” conduct of economic activities that must be attributable to the following macro-sectors identified in Table 1 annexed to the Decree:
Extractive Activities (Section B):
06 – extraction of crude petroleum and natural gas.
09.1 – support activities for petroleum and natural gas extraction.
Manufacturing Activities (Section C):
19.2 – manufacture of products derived from petroleum refining and products from fossil fuels.
Electricity and Gas Supply (Section D):
35.1 – Production, transmission, and distribution of electric power.
35.2 – Production of gas and distribution of gaseous fuels through mains.
35.4 – Intermediation service activities for electricity and natural gas.
Transportation and Storage (Section H):
49.50.1 – Transport of gas via pipelines.
In the absence of further implementing guidance or criteria expressly defined by the legislature (potentially already during the parliamentary conversion process), the notion of “predominance” will likely need to be construed by reference to objective parameters, such as revenue volume or the value of production relevant for IRAP purposes. Consistent with the framework of the regional tax, it appears reasonable to consider that the decisive criterion may be identified in the percentage weight of the net production value attributable to energy activities relative to the total.
A particularly noteworthy issue concerns enterprises that, in addition to the activities falling within the ATECO codes identified by the Decree, also carry out further activities outside the energy perimeter. Based on the literal wording of the provision, it would appear that, where the energy activity is predominant, the increased rate applies to the entire IRAP tax base and not solely to the portion of net production value attributable to the predominant segment.
Such an interpretation, if confirmed in administrative practice, could give rise to significant complexities in application, particularly for multi-business groups, vertically integrated utilities, and companies engaged in mixed activities, where the delineation of the energy perimeter – for purposes of verifying predominance – may not always be straightforward, especially in the presence of functionally integrated activities or organizational models that do not allow for a clear separation of economic flows. This would indeed entail potential issues both in the subjective qualification phase and in the planning of overall tax impacts.
Impact on Advance Payments: Recalculation Using the Historical Method
A particularly significant operational aspect of the new legislative provision concerns its coordination with the mechanism for determining advance payments under the historical method. Paragraph 2 of Article 3 provides that, for purposes of calculating the advance payment due for the tax year following the one in progress as of 31 December 2025, the tax liability for the preceding period must be recalculated as if the increased rate were already applicable.
In substantive terms, this results in an acceleration of the tax burden already at the advance payment stage for 2026, with immediate effects on the liquidity and financial planning of the affected enterprises. The additional tax burden will therefore materialize before the final settlement, effectively enabling the Ministry of Economy to collect the resources as early as the upcoming June and November 2026 deadlines, and significantly impacting entities characterized by high production values and capital-intensive structures.
Allocation of Revenue and Redistributive Mechanism
The provision under review outlines and forms part of a broader strategy for the redistribution of resources within the energy sector, leveraging the IRAP tax mechanism to finance a targeted reduction in general system charges.
The Decree provides that the resources generated by the rate increase shall be entirely allocated to reducing the ASOS component of the electricity bill for non-domestic users, excluding: (i) public lighting users, low-voltage users for other purposes, and non-domestic users connected at medium, high, and extra-high voltage; (ii) withdrawals benefiting from the special tariff regime under Article 29 of Decree-Law No. 91/2014; and (iii) users enrolled in the registry of enterprises with high electricity consumption established at the Fund for Energy and Environmental Services (CSEA) pursuant to Article 3 of Decree-Law No. 131/2023.
The benefit is therefore not absolute in scope but is directed at the intermediate productive sector that does not benefit from the preferential regimes reserved for large energy-intensive consumers and major industrial districts and that, in proportional terms, bears a significant incidence of general system charges.
In these terms, an internal reallocation mechanism within the energy system is thus established, whereby a portion of the additional tax revenue from energy supply chain operators is allocated to reducing energy costs for non-energy-intensive productive enterprises, with the stated objective of structurally mitigating the burden of general system charges.
From a systemic perspective, the measure is situated within a logic of internal rebalancing of the energy supply chain, aiming to capture a portion of the margins potentially earned in certain segments of the sector and to allocate them toward containing the energy costs borne by enterprises that are less protected against market volatility.
Although the provision does not expressly characterize the surcharge as a “solidarity contribution,” the structure of the intervention – confined to a specific sector and aimed at redistributing resources within it – recalls and presents clear substantive analogies with prior sector-specific levy measures oriented toward redistributive purposes.
It remains to be seen, however, including in light of future interpretive and implementing guidance, whether the legislative framework will succeed in reconciling the objective of equity with the need to ensure certainty and stability of the tax landscape. In particular, it will be necessary to assess whether the temporary increase in the IRAP rate may affect investment decisions and the predictability of the tax burden for sector operators, especially in an industry characterized by high capital intensity and medium- to long-term planning horizons.
Preliminary Considerations
The new regulatory framework effectively requires potentially affected enterprises to undertake a careful and timely internal analysis. In particular, it appears essential to conduct a thorough review of one's ATECO classification, also in light of the activities actually carried out and their economic significance, as well as a technical analysis of the criteria for determining “predominance,” with specific reference to the proportion of net production value attributable to energy activities.
At the same time, the economic and financial impacts arising from the rate increase must be assessed in advance, also considering the recalculation of the 2026 advance payments under the historical method, which will result in an acceleration of the higher tax burden.
In this context, a proactive and structured approach could help mitigate tax and interpretive risks, safeguard compliance requirements, and coherently and promptly integrate – although on a temporary basis - the new and increased charges into the tax and financial planning process, within an evolving regulatory environment that is moreover subject to potential amendments during the parliamentary conversion of the decree-law into statute.
![[Translate to English:]](/fileadmin/_processed_/c/8/csm_ADV_energy_copy_94d5c5bc1a.jpg "[Translate to English:]")
