A bank transfer made between two friends and returned on the same day evolved into a tax case with significant consequences. By TEN Decision 1544/2026 it was considered that the transfer is still considered as a donation for tax purposes, despite the immediate return of the money, as the invocation that the transaction was made by error is not sufficient in itself to overturn the tax consequences.
The case concerned bank transfer of EUR 51,801 between two friends. A few hours later the amount was returned to the original sender, claiming that the transfer had been made by mistake and that the parties sought a different bank transaction. They asked the tax administration to consider that the transaction never produced legal effects so as not to impose tax (i) the development of a European network of information and communication technologies;
The TEN, however, rejected the claim. As noted in the judgment, in accordance with the provisions of the Civil Code, the legal act committed by a mistake is not automatically deemed void. It is invalidated and a court order is required to cancel it. Until such a decision is taken, the legal act normally produces its legal effects and, consequently, the tax obligations resulting therefrom apply.
Of particular importance is that the TEN specifies that the tax obligation is born at the time when the transfer of money to the donor account is completed. The later refund of the amount does not invalidate the fact that the donation is deemed to have taken place at the time of transfer.
In other words, neither the same day's refund nor an application to the DOU is enough to eliminate the donation tax. The tax administration is bound by the validity of the transaction, unless it is annulled by final court decision.
The decision also contains an important clarification. Even if the donor and the donor agree to withdraw the donation and return the money, this refund is not taxed as a new donation, but the tax levied on the initial transfer still applies. In other words, the common agreement of both sides does not delete the tax obligation that was born when the initial transfer of the money was made.
At the same time, the TEN also rejected the taxpayer's request to cancel the tax due to a manifest lack of tax liability, considering that its claims were not proven with clear and complete evidence. Among other things, it was noted that the contested proxy was not provided and there were doubts as to the facts of the transaction.
The TEN decision is essentially a guide to relevant cases in the future. It makes it clear that the same day's refund is not enough to eliminate the donation tax, while the invocation of error can only be accepted if a court ruling cancelling the transaction is preceded.
The taxation of donations
In the TEN case the transfer concerned two friends, namely persons who do not belong to the first category of kinship. For monetary donations, the following basic rules apply:
First category (wives, parents, children, grandchildren): 10% tax, tax free up to 800,000 euros when the law requirements are met and the transfer is done through the banking system.
Second category (brothers, nephews and other relatives of this category): 20% tax on monetary donations.
C category (friends and any other person not covered by the previous two categories): 40% tax on monetary donations.
