Studio Tributario e Societario

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1 Studio Tributario e Societario Tax Alert STS Deloitte's newsletter N. II - June 2017 Japanese - English

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3 Direct Tax バランスシートにおける変更事項とその税務上の影響 - 法令 No.244/2016 第 13 条 -bis( 法令 No.19/2017 により改正 ) 2016 年 12 月 30 日付法令 No.244 第 13 条 -bis により 法令 No.139/2015 によって導入され 2016 年 12 月 22 日にイタリア会計機構 (OIC) によって置き換えられたバランスシートについての新しい規定と IRES 及び IRAP についての税制を調整するための規定が定められ イタリア所得税法にいくつかの変更点が加えられた 税務情報の自動交換 : スイス及び香港と新たな協定成立 国際的な租税回避に対応するためには 国同士の税務情報の交換が大きな役割を担っている これに関連して イタリアは最近 スイス及び香港と新たに情報交換のための協定を締結した みなし利子控除 (ACE) 制度 2016 年 12 月 11 日付法令 No.232(2017 年予算法 ) の第 1 条 549 ~553 項により 新たな資本増加額に対するみなし利子控除率は 年は 2.3% 年以降は 2.7% と定められた また 当該法令により ACE 適用に関するその他の変更や説明が加えられた 株式の再評価 2017 年予算法により 個人 パートナーシップ 非営利団体 恒久的施設を持たない外国企業が所有する土地及び非上場株式の再評価が 8% の代替税を支払うことで再度可能となった 支払額は 2017 年 1 月 1 日付の株式価額をもとに計算されるが 当該価額は 2017 年 6 月 30 日までに実施された正式な専門家の鑑定書で証明されなければならない 代替税は 2017 年 6 月 30 日までに全額支払うか 3 回の年賦で支払う ( その場合年間 3% の利息が適用される ) 株主に譲渡した資産に対するコミュニケーションの廃止 税務コンプライアンスを簡素化する目的で制定された法令 No.244/2016(Milleproroghe と呼ばれる ) により (1) 会社から株主にベネフィットとして譲渡された資産及び (2) 株主又はその家族による資金及び資本調達についての報告義務を定めた法令 No.138/2011 第 2 条 36 項 sexiesdecies 及び 36 項 septiesdecies が廃止された 3

4 Indirect Tax Global Employer Services CUSTOMS 欧州連合関税法典 (UCC) についての説明 税関当局は 年 5 月 1 日から適用されている欧州連合関税法典 ( U C C ) についての規定と説明を行うため いくつかの条項を定めた また 欧州委員会より AEO ガイドラインがイタリア語で発表された GLOBAL EMPLOYER SERVICES 代替税制度の適用についてのルーリング申請 イタリア税務当局は 3 月 8 日 イタリア所得税法第 24 条 bis で定められている代替税制度の適用のためのルーリング申請手続きを定めた規定 No を発表した 特に 外国源泉所得に対する代替税制度のオプションを選択するためのルーリング申請の際に納税者が添付すべきチェックリストが税務当局より発表された 4

5 Tax Litigation Transfer Pricing 回収委託された税務更正債務の早期支払奨励のための制度 - 詳細な説明 年 3 月 8 日付通達 No.2/ 年 3 月 8 日付通達 No.2/E により 税務当局は 回収委託された税務更正債務の早期支払奨励制度 ( 法令 No.193/2016 第 6 条 ) について 詳細な説明を行った 株式会社の財団法人への合併 年 3 月 7 日付解釈 No 年 3 月 7 日付解釈 No.27/E により イタリア税務当局は 商業事業を営まない財団法人の設立による合併後の 株式会社の純資産に含まれる tax suspension の対象となる準備金の税務上取扱いについて詳細な説明を行った 納税額がゼロの場合の F24 フォームの提出漏れ又は提出遅れ - 自主的修正申告 年 3 月 20 日付解釈 No.36/E 2017 年 3 月 20 日付解釈 No.36/E により 税務当局は 過払い税額と納税すべき額との相殺により納税額がゼロとなる場合の F24 フォームの提出漏れに対する自主的修正申告の提出方法について 説明を行った 国別 (CbC) 報告義務についての省令の発表 2017 年 3 月 8 日付の官報に CbC 報告義務を執行するための省令が発表された CbC 報告義務は 2015 年 12 月 28 日に承認され 2016 年予算法 ( 経済安定化法とも呼ばれる ) によって導入された制度で 2016 年 1 月 1 日からイタリアで事業を営む多国籍企業に対して報告義務が適用されている CbC 報告義務は 当該省令第 7 条および経済安定化法第 1 条 145 項に定められている通り 税務当局が移転価格モデルの妥当性およびイタリア課税対象の浸食に関するその他のリスクの評価を行う際に使用され 税務当局のリスク評価活動を支える追加の手段となる 経済安定化法令第 1 条 145~146 条により 一定の規模の閾値を超える多国籍企業に グループ会社が事業を行う国ごとに分けられた一連の情報を税務当局に報告するための CbC 報告書を準備する義務が導入された これらの規定は OECD の税源浸食と利益移転 (BEPS) に対抗する OECD のプロジェクトに従って発行されたものであり 当該プロジェクトに含まれる 15 の 行動 のうち 行動 13 の 移転価格文書及び国別 (C b C) 報告書についてのガイダンス が該当する CbC 報告書は イタリアに税務上居住する多国籍グループ会社の親会社のうち 連結売上高が 750 百万ユーロを超える会社に対して義務となる 報告書の作成は 連結財務諸表作成の責任を負う最終的な親会社にその責任が課せられる 5

6 省令によると CbC 報告書は 2016 年 1 月 1 日または同日以降に始まる税務年度が対象となり 連結財務諸表の報告期間に言及して 当該年度終了後 12 ヶ月以内に提出されなければならない ( 会計年度が暦年である会社の場合 2016 年度の報告書の提出期限は 2017 年 12 月 31 日 ) CbC 報告義務を持つ多国籍グループに属するイタリアに税務上居住する子会社は CbC 報告書作成義務を持つグループ会社についての情報を税務申告書に記載しなければならない 経済安定化法および省令第 2 条の規定によると 連結財務諸表の作成が求められる最終的な親会社が 以下の条件に当てはまる国に居住する場合 CbC 報告義務の対象となる多国籍グループに属する イタリアに税務上居住する外国企業の子会社及び恒久的施設に対しても CbC 報告義務が適用される CbC 報告義務が導入されていない国 (2016 年度については 以下の場合を除く 省令第 2 条 7 項 ) - 親会社が自主的に CbC 報告書を自国に提出している場合 -イタリアの C b C 報告書作成条件の範囲内で 対象文書を作成する義務が 2017 年度以降の期間について導入された場合 CbC 報告書についてイタリアと適切な情報交換に関する協定が締結されていない国 CbC 報告書についての情報交換義務を不履行した国 または親会社が居住国に CbC 報告書提出を怠った場合 あるいは 居住国が上記要件に当てはまり またグループ内のイタリア会社が税務申告書に当該会社の情報や税務居住地を報告している場合 CbC 報告書は 連結親会社以外の会社が作成することもできる 省令の付属文書にある通り CbC 報告書の標準的内容は OECD の BEPS 行動 13 最終報告書に含まれる 3 つのサンプル表を使用する 経済安定化法の第 1 条 145 項には CbC 報告書の提出漏れまたは報告内容漏れがあった場合は 1 万 ~5 万ユーロの行政罰が課せられると定められている また省令には CbC 報告書の提出方法について 税務当局より特定の指令が発行される予定と述べられている 自動情報交換 : 法令の発表 2017 年 3 月 23 日付で 税務上の自動情報交換義務についての以前の規則に変更を加えた EU 指令 2015/2376 を法制化するための法令 No.32 が施行された 2017 年 1 月 1 日より 納税者が該当年度に実施した特定のルーリングや事前価格協定についての情報交換が 各国に対して義務となった 6

7 R&D and Government Incentives R&D 税額控除 :2017 年度予算法による変更点 2017 年 1 月 1 日より施行されている 2017 年度予算法 ( 法令 No.232/2016) により R&D 税額控除にいくつかの重要な変更点が導入されている 当該税インセンティブの適用可能期間は 2019 年 12 月 31 日から 2020 年 12 月 31 日に延長された さらに 2017 年より以前は 税額控除率は費用の種類により 25% 又は 50% が適用されていたが 2017 年度予算法大 1 条 15 項 (a) により 全ての適格費用について 50% が適用されることとなった 委託研究に関しても重要な変更があった イタリア居住法人及び非居住法人の恒久的施設は 適切な情報交換が可能な国に所在する企業に委託された R&D 活動に関しても 当該インセンティブを適用することが出来ることとなった 2017 年度予算法 : 超過償却 (super-depreciation/hyperdepreciation) 2017 年度予算法により 新たに購入された資産への投資に対する 40% 超過償却 (Super-depreciation) 制度が 2017 年 12 月 31 日までに延長された また 2018 年 6 月 30 日までに購入された資産に対しても 2017 年 12 月 31 日までに発注され最低でも 20% の支払いがなされていれば 当該インセンティブを適用できる また 2017 年度予算法第 1 条 9 項により 法令の付録 A に記載されているハイテク固定資産の購入費用に対する 150% 超過償却 (hyper-depreciation) 制度が導入された 7

8 Direct Tax Tax effects of changes in the Company s Balance Sheet-Article 13 bis of Decree n. 244/2016 as amended by Law 19/2017 The article 13-bis, introduced during the examination at the time of conversion into law of D.L. n. 244 of , bears the coordinating provisions of the legislation on IRES and IRAP by the Legislative Decree. N. 139/2015 and transposed by the OIC, last December 22, The Italian Tax Code, therefore, will undergo some coordination s changes. In particular: Article 83 of the Italian Tax Code: for the tax periods following the one in progress at 31/12/2015, the strengthened derivation principle also applies to individuals ITA GAAP, other than micro-enterprises in art.2435-ter of the Italian Civil Code. This implies that in place of the legal-formal representation of the operations performed detects for both, accounting and tax purposes, the representation of the operations based on the economic substance. It has, therefore, tax relief, the qualification, classification and time recognition of each case based on the accounting treatment that must take into account the actual transfer of risks and benefits. Article 109 of the Italian Tax Code: it has respected the principle of prior allocation at Income Statement for those components of income that no longer pass through the Profit or Loss but are recognized in Equity (e.g. adjustments for "relevant" accounting errors). Article 96 of the Italian Tax Code: following the elimination of the section of the extraordinary components (sections E20 and E21) of the Income Statement, for the purposes of determining the ROL (gross operating profit, i.e. the difference between the value and costs of production) are not taken into account the positive and negative components resulting from operations of transfer of firm. Article 108 of the Italian Tax Code: it has introduced a unique limit of deductibility of expenses relating to several years, consisting of the portion of the same expenses, attributable to each exercise, with the exception of entertainment expenses. Article 110 of the Italian Tax Code: it has introduced the possibility of referring, for tax purposes, to alternative exchange rates compared to those of the Central European Bank, provided by independent operators with appropriate forms of advertising. Article 112 of the Italian Tax Code: it has introduced the tax treatment of the new accounting treatment of derivative financial instruments, which are stated at fair value. This assumption applies to both, speculative and hedging derivatives. In particular, according to the new article 112, the positive and negative components arising from measurement at fair value of speculative derivatives, assume integral relevance for tax purposes, while, for hedging derivatives worth the so called "Principle of fiscal symmetry". The aforementioned article 13-bis, at the paragraph 9, provides that the income and balance sheet effects of the operations, which continue for the next tax periods adopting the new accounting rules, remain subjected to fiscal discipline previously in force (so called: Neutrality of the transitional period). As for the review provisions of the Aid to Economic Growth (ACE), the rule of coordination provides that these provisions will be adopted by the Minister of Economy and Finance, in order to coordinate the legislation currently in force for IAS subjects, with that provided for the subjects ITA GAAP. 8

9 Automatic Exchange of tax information: new agreements with Switzerland and Hong Kong The exchange of tax information between jurisdictions assumes a leading role in order to contrast international tax evasion. In this context, Italy has recently signed two new agreements for the exchange of information with Switzerland and Hong Kong. Agreement Italy - Switzerland The agreement, signed between Italian and Swiss competent tax authorities, is the last step of a cooperation process launched in February 2015 with the signing of the Memorandum of Understanding, which emended art. 27 of Ita-CH Double tax treaty ( DTT ) ruling bilateral measures on tax information exchange. Please consider that recently adopted Italian voluntary disclosure programs started on these premises. The scope of the agreement is strictly limited to potential remaining positions not regularized yet, with the 2015 voluntary disclosure program. Hence, the agreement applies mainly to Italian taxpayers who in the period between February and December held a bank account in Switzerland and following a request from their Swiss bank to prove the regularity of their tax position in Italy, have not provided enough evidence about the fulfilment such obligations (so-called recalcitrant account holders ). Conversely, the agreement expressly excludes from exchange of information perimeter: (I) subjects who have joined the voluntary disclosure procedure; (II) subjects who have taken steps in the past to rectify their banking relationships, due to the effect of the agreement on savings taxation signed between Switzerland and the EU, as well as through the instrument of the so-called tax shield (in this last case, there is an exclusion only if the amounts held and those regularized match each others) and, finally, (III) subjects who declared in the RW framework of their tax return the balance of their own foreign bank account. This last exclusion will operate only if the balance of the account indicated in the RW framework is consistent with the bank balance. The agreement does not operate in a generalized way but through specific group requests limited to groups of taxpayers identified on the basis of motivated investigation reasons and objective criteria. More specifically, the group requests must contain punctual elements like for example: (I) the criteria used for the selection of the group of contributors and the reasons for which tax evasion is suspected; (II) the identity of the subjects who may hold such information; (III) the period under investigation; (IV) the indication of the object of taxation (e.g. income, assets, etc.). The Swiss authorities, once the requested information has been processed, will provide the Italian tax authority with the following information: (I) personal data of the Italian taxpayer; (II) number of the bank account; (III) bank account balance as of February and December 31, The agreement came into effect on March 2, 2017 as a result of the subscriptions by the two jurisdictions (Rome - February 27, 2017 and Berne - March 2, 2017). Agreement Italy - Hong Kong On March , in Paris, Italy and the Special Administrative Region of Hong Kong (China) signed a bilateral agreement on the exchange of information, which is based upon Article 25 of the recently signed Ita-HK DTT (in force since August 10, 2015). The agreement falls under the so-called CAA ( Competent Authority Agreements ) and it will allow the automatic exchange of financial information between the two jurisdictions once they have both ratified the adoption of the so-called Common Reporting Standards. More specifically, the agreement introduces annual exchange obligations regarding data on bank accounts and other financial assets (as specified in Section 2 of the agreement) that are held in local banks by citizens resident in Italy or companies and entities attributable to holders who reside in Italy. The exchange of information will concern, among others, the following information: (I) personal data and identification data about the resident holder of the bank account; (II) number of the bank account; (III) the name and identification data of the financial institution; (IV) the bank account balance and other information in relation to the nature of the held financial relationship. The first exchange of information will concern data covering the period that begins on the first date between 1 July 2017 and the date of the Agreement implementation in Hong Kong and ends on 31 December This procedure will continue automatically with reference to all the following years. The aforementioned period for the initial exchange of information will become applicable by reference to the generality of data of financial reports held by residents, which are indicated in the mentioned Section 2 of the agreement, except for total gross revenues resulting from the sale or reimbursement of financial assets paid or credited to the local bank account in the year 9

10 during which the bank acted as a custodian, broker or otherwise, such information shall be exchanged as of 2018 and for subsequent years. Given the automatic nature of the information exchange, the procedure is independent from actual requests made by either State. Consequently, the automatic exchange of information will apply to all account holders without distinction. As referred to in the press release from the Ministry of Finance, the automatic exchange of information will start by September Repeal of the communication of assets provided to shareholders Decree law n. 244/2016 (so-called Milleproroghe ) aimed at simplifying tax compliance has provided for the repeal of paragraphs 36-sexiesdecies and 36-septiesdecies of art. 2 of the decree law n. 138/2011 (converted with modifications by law n. 148/2011), which regulates reporting obligations on (I) assets provided by the companies for the benefit of their own shareholders and (II) funding and capitalizations made by shareholders (natural persons) or by their family members. It is worth noting that the provisions of the aforementioned decree law do not specify the starting date of repeal. Nevertheless, waiting for an official confirmation by Italian tax authorities, tax practitioners have argued that the repeal should apply to communications regarding assets and funding/ capitalizations provided in 2016; such communications, without the repeal, should have been submitted in It is worth noting that the repeal concerns only notification requirements, being understood that taxation of shareholders their family members remains in force. Allowance for corporate equity ( ACE ) discipline Article 1, paragraphs n , of the law n. 232 of December 11, 2016 (so-called Budget Law 2017) has redefined the notional income deduction rate provided by ACE discipline stating that new equity and capital injections will be subject to a 2.3% rate for 2017 and to 2.7% rate starting from 2018 and thereafter. In addition, the law has provided that equity increases will not benefit of NID discipline in case of simultaneous increase of investments in securities and financial instruments different from participations compared to what is reported in the financial statements in progress on December 31, 2010 (such anti-avoidance provision has been borrowed from the same provision contained in the previous Italian Dual Income Tax legislation). Finally, it should be noted that anti-avoidance provisions relating to the carry-forward of tax losses and interest expense surplus in case of M&As, have been extended to carry-forward of NID surpluses. More specifically, the 2017 budget law has changed articles 172, paragraph 7; Art, 173, paragraph 10 and art. 181, of the Italian Corporate Income Tax Code, providing that the so-called Vitality test and the socalled Equity test must be passed also with regard to the carrying-forward of the NID surpluses, in case of national or intra-community mergers and demergers. Limitations to the carry-forward of surpluses apply - always with anti-avoidance purposes - even in the case of change of the main activity carried out by a company, together with the change of the entity that controls (having 50% of shares or voting rights) such a same company, without prejudice to the possibility not to apply the discipline, should the vitality test be passed (art. 84 of TUIR). Revaluation of shares Through the Budget Law of 2017 the terms for the revaluation of land and un-listed shares on regulated markets, which are held by individuals, partnerships, non-profit organizations and foreign companies with no permanent establishment in Italy, have been reopened, by means of the payment of an 8% substitute tax. The payable amount is calculated upon the value of the share on January 1, 2017, which must be certified by a sworn expert appraisal, to be completed by June 30, The tax must be paid by June 30, 2017 or it must be paid in three annual installments from the same date, with the application of interests at a rate of 3% per annum (for a more in-depth view please see our previous Tax Alert n. I - March 2016). 10

11 Indirect Tax Global Employer Services CUSTOM Indications and clarifications on the UCC legal package The customs and monopoly Agency has issued several acts to provide indications and clarifications on the UCC (i.e. Union Customs Code ) legal package that is as anticipated in the last Tax Alert is the union customs legislation applicable from 1 st May Among them, the following shall be outlined: Decision of the customs and monopoly Agency Director No 188 of 13 January 2017, providing indications to comply with the practical standards of competence or professional qualifications directly related to the activity carried out, criterion required by the UCC for the granting of the AEO status and which in particular, among the others cases, shall be considered to be fulfilled if the applicant or the person in charge of the applicant s customs matters has successfully completed training covering customs legislation to be provided through training events which are in line with the indications stated by the Decision at hand; Communication of 30 January 2017, informing that, in the light of the new legislation, under customs warehousing there is not anymore the obligation of lodging an inventory of the goods towards customs; Note No of 6 March 2017, clarifying conditions and requirements necessary for presenting goods to customs at a place approved by customs authorities instead of at the designated customs office, even for goods to be exported. Finally, the AEO Guidelines in Italian language have been published by the European Commission, which may be a useful guideline also for operators getting the AEO status before 1st May 2016, that is under the legislation in force before the UCC legal package considered that in the light of this latter the relevant certificates are subject to a re-assessing by the customs authorities aimed to verify the compliance of the already granted AEO status with the new legislation. Ruling request for the application of the substitutive tax regime On March 8 th the Italian Tax Authority issued the implementing Decree no , describing the procedure regulating the ruling request for the application of the substitutive tax regime provided for by Article 24-bis of Italian Tax Code. In particular, the Italian Tax Authority has issued a check list that the taxpayer will have to attach to his ruling request in order to exercise the option for the substitutive tax regime on foreign sourced income. Article 24-bis of Italian Tax Code The Italian Finance Bill for 2017 (Law no. 232 of 11 December 2016, published on the Italian Official Gazette of 21 December 2016 and entered into force on January 1st 2017) provides for a tax package tailored to attract human capital, in order to enhance investments and stimulate growth. The measures include a Eur substitutive tax on all foreign source income of individuals who become Italian resident after at least a 9-year period of residence outside of Italy. The substitutive tax is due on an annual basis for a maximum of 15 years. This tax measure may be extended to the family members of the taxpayer and, in such case, the amount of the tax is reduced to Eur for each additional family member. Family members are defined for this purpose very broadly and are not limited to the spouse and children. The option must be exercised after having obtained a positive ruling with the Italian Tax Authorities, which must confirm that every condition is verified. Decree no issued by Italian Tax Authority on March 8th As anticipated, on March 8 th the Italian Tax Authority issued the implementing Decree describing the procedure regulating the ruling request for the application of the substitutive tax regime provided for by Article 24-bis of Italian Tax Code. 11

12 Tax Litigation Unexpectedly, the implementing Decree states that the ruling request for the application of the substitutive tax regime is not compulsory. Consequently, a taxpayer could decide not to file the ruling request and to simply flag the specific space in his individual income tax return in order to benefit of the substitutive tax regime, in the event he qualifies himself as not tax resident in Italy for at least 9 years in the 10 year periods preceding his move to Italy. In such case, the taxpayer has to exercise the option for the substitutive tax regime though the tax return pertaining to the fiscal year in which he becomes tax resident in Italy. Therefore, if the taxpayer becomes tax resident in Italy in FY 2017, the same will be entitled to exercise the option for the substitutive tax regime by filing the 2017 individual income tax return on September Concessional Settlement of the Amounts Payable Entrusted to the Agents in Charge of Collection - Detailed Explanation - Circular Letter no. 2/E of March 8th, 2017 Through its Circular Letter no. 2/E of March 8 th, 2017 the Inland Revenue Office provided a detailed explanation of the Concessional Settlement of the charges payable entrusted to the agents in charge of collection (as per article 6 of the Italian Law Decree no. 193/ see also Tax Alert IV/2016). Please note that through the Law Decree of March 24 th, 2017 (Official Gazette no. 74 of March 29 th, 2017) the term for acceptance was extended from March 31 st, 2017 to April 21 st of this same year. Also the charges consisting of mere tax penalties may be settled by paying the amounts due to the agent in charge of collection or, if not due, by submitting the acceptance statement. The settlement is completed upon the full and timely payment of all the amounts due (not only of the first instalment thereof); if the amount due is already paid, the settlement is completed upon the submission of the statement. With respect to the debts included in delayed payments already agreed upon as at October 24th, 2016 (which may be settled provided that the payments due up to December 31 st, 2016 have been settled and the following instalments up to July 2017 have been suspended pursuant to legal provisions): (i) if in July 2017 the debtor has duly paid the first - or single - instalment, the automatic withdrawal of the previous extension will apply and, in case of insufficient, late or non-payment of any subsequent instalment, the settlement will no longer be effective and it will not be possible to divide the debt into new instalments, nor the debtor will be able to resume the payments of the previous extension because this would be automatically revoked by the payment of the first instalment; (ii) if - conversely - in July 2017 the debtor has not duly settled the payment of the first 12

13 - or single - instalment, the settlement will no longer be effective and it will not be possible to divide the debt into new instalments; in this case, however, the taxpayer will be able to resume the payments of the previous extension (which have not been automatically withdrawn). The fact that the taxpayer commits him/herself to withdraw any ongoing trials (as reported in the acceptance statement) does not imply any withdrawal of appeal: indeed, the settlement is completed upon the timely or full payment of the total amount due and - as a consequence thereof - the reason for litigation (either total or partial) ceases to exist. In the event of settlement of charges deriving from a first-degree unfavourable judgement (i.e. two thirds to the higher tax plus applicable interest and penalties), if the final judgement is favourable, no further collection or reimbursement of the amounts paid will occur; conversely, in the event of final unfavourable judgement, the remaining third plus applicable interest and penalties will be collected. Merger of Joint Stock Companies into a Foundation - Resolution no. 27/E of March 7 th, 2017 Through the resolution no. 27/E of March 7, 2017 the Inland Revenue Office provided a detailed explanation of the taxation of the reserves subject to tax suspension included in the net equity of a joint stock company following its merger by incorporation into a foundation that does not run any commercial business. The joint stock company applied the revaluation set out in the Italian Law Decree no. 185/2008 providing the fiscal acknowledge of the higher values attributed to buildings through the payment of the substitute tax. This way, the credit balance of the revaluation was not redeemed and, consequently, it was considered as a reserve subject to tax suspension that, in the event of any distribution to shareholders, would have formed the income of the company and of the shareholder as dividend. The merger in question implied a transformation of the company being incorporated by a joint stock company into a non-commercial entity: consequently, both article 172 of the TUIR on the tax treatment of mergers, and article 171 of the TUIR on heterogeneous transformation applied to the operation. In particular, article 171, par. 1 provides that all the assets of the incorporated/transforming company which were not incorporated in the commercial branch of the incorporating company are considered as realized at the normal value of the assets. The taxation of profit reserves (including those subject to tax suspension) "takes place upon their effective distribution or use for other purposes than the ones aimed at covering operating losses, provided that they are reported in the financial statements by identifying their origin"; therefore, "subject to this condition, the transformation would not create a precondition of taxation for the shareholders or for the company". This condition is met only when the transformed company (i.e. the incorporating foundation) also runs a commercial business "because only in this event (...) the reserves may be used to cover (or not) operating losses". Otherwise, an illegitimate tax suspension would apply (to the foundation and to the shareholders). Since the Foundation resulting from the merger does not run any commercial business, the reserve shall be taxed with respect to the company because it is intended to be used for other purposes than the commercial business, whereas it shall be considered as distributed in the FY following the transformation one with respect to the Foundation. 13

14 Transfer pricing Omitted or Delayed Submission of the Tax Form Called F24 Reporting a Zero Balance - Active Repentance - Resolution no. 36/E of March 20 th, 2017 Though the resolution no. 36/E of March 20 th, 2017 the Inland Revenue Office explained the application methods of the active repentance in the event of setoff of tax credits and debits (the so-called "horizontal" or "external" set-off) failing the submission of the tax form called F24 reporting a zero balance (see art. 19 of the Italian Legislative Decree No. 241/1997). Since January 1 st, 2016, as per the provisions of art. 15, par. 2- bis, of the Italian Legislative Decree no. 471/1997 (see former art. 19, par. 4, of the Legislative Decree no. 241/1997), "in the event of non-submission of the payment form reporting the data of set-off execution, a penalty of 100 Euros applies; the penalty is reduced to 50 Euros if the delay does not exceed five working days". The Inland Revenue Office points out that the active repentance "has a reward function consisting in the reduction of the basic penalty imposed on the transgressor" and "in the case in question, the basic penalty is quantitatively determined differently depending on the period of time in which the infringement is regularized". Therefore, the reduction to a ninth of the minimum penalty provided for the regularisation within ninety days from the non-submission (see art. 13, par. 1 lett. a- bis, of the Italian Legislative Decree no. 472/1997), will apply to the basic penalty (i) of 50 Euros if the delay does not exceed five working days (i.e Euros); (ii) of 100 Euros if the delay ranges from five working days to ninety days from the non-submission (i.e Euros); if the delay exceeds ninety days, the additional penalty reductions will apply to the basic penalty of 100 Euros. Italy issues rules for implementation of Countryby-Country Reporting Italy on 8 March published in the Italian Official Gazette a decree implementing a Country-by-Country (CbCR) Reporting requirement. The CbC reporting requirement had been introduced in the Budget Law 2016 (also known as the Stability Law) approved on 28 December The Stability Law introduced a mandatory reporting requirement for multinational companies into Italian tax legislation, effective 1 January The CbC reporting requirement, as stated in Art. 7 of the decree and paragraph 145, Article 1 of the Stability Law, will be used by the Italian tax authorities to assess the reasonableness of the transfer pricing model, as well as to evaluate other risks concerning the erosion of the taxable base in Italy, and represents an additional instrument to support the tax authorities in their risk assessment activities. Paragraphs n. 145 and 146 of Art. 1 of the law introduce an obligation for multinationals that exceed certain size thresholds, to prepare CbC reports, through which they will report to the tax authorities a series of information, broken down for each country in which the group operates. Those provisions were issued following up to the OECD project to counter the erosion of the tax base and the shifting of profits abroad (Base Erosion and Profit Shifting, BEPS) through elusive practices, which includes 15 actions among which Action 13 Guidance on Transfer Pricing Documentation and Country-by- Country Reporting (hereinafter also CbC Report ). The CbC report must be prepared by parent companies of multinational groups resident within Italy for tax purposes, with a consolidated turnover of over EUR 750 million. The entity responsible for the preparation of the document is the ultimate parent company with the responsibility to prepare the consolidated financial statements. 14

15 Under the decree, the CbC report covers fiscal years beginning on or after 1 January 2016, and must be filed within 12 months from the end of the reference year (e.g. for entities with calendar year reporting periods, the deadline for submission will be 31 December 2017 for fiscal year 2016), making reference for this purpose to the reporting period of the consolidated financial statements. Controlled entities resident in Italy for tax purposes that are part of multinational groups subject to the obligation to file the CbC report must notify in their tax return (due by the end of the ninth month from the fiscal year end) the details of the group entity in charge for the preparation of the CbC report, including its tax jurisdiction. On the basis of the law and of the provisions of Art. 2 of the decree, the CbC report obligation will be extended to both Italian tax resident subsidiaries and permanent establishments of foreign entities, part of multinational companies that fall within the scope of the CbC reporting obligation set forth by the Stability Law, in the event that the ultimate parent company required to prepare consolidated financial statements is resident in a State that: Has not introduced the obligation to file a CbC report, unless, as stated in art. 2 par. 7 of the decree, for the fiscal year beginning in 2016 only: - the parent company voluntary files the CbC report in its state; and - the state has introduced, within the terms of presentation of the CbC report in Italy, an obligation to prepare the subject document, even if just for later periods; Has not in force an agreement with Italy regarding the exchange of information related to CbC reporting; or Defaults on its obligation to exchange information regarding CbC reporting, or in case the parent company fails to submit the CbC report in its state of residence. Alternatively, the CbC Report can be prepared by a company other than the consolidating entity, provided that its State of residence fulfills the above-mentioned requirements and that the Italian entity reports in the tax return the identity and tax residence of that other company. As indicated in the annex to the decree, the standard content of the CbC report will reproduce the same three sample tables included in the OECD BEPS Action 13 final report. The Stability Law, at Article 1, paragraph 145, provides for an administrative penalty ranging from EUR 10,000 to EUR 50,000, if the CbC report was not filed or it was submitted with incomplete or incorrect information. The Decree refers to a yet-to-be-issued specific order of the Revenue Agency in respect to the information on how to file the CbC report. Automatic Exchange of Information: published the implementing Decree On March 23, 2017, came into force Legislative Decree n.32, implementing the European Directive 2015/2376, which changed previous regulations on the mandatory automatic exchange of information in the field of taxation. It has now become mandatory for States, with effect from January 1, 2017, exchanging information on rulings and advanced price arrangements entered into by the taxpayers as of that year, with particular regard to the following cases: Advanced price agreements for the companies with international activities pursuant to art. 31-ter of DPR 600/1973, which can be activated for the definition of transfer prices, the determination of exit and entry tax in case of change of residence, the attribution of profits or losses to a permanent establishment and the advance assessment of the existence or not of the requirements that determine the presence/ creation of the latter, the delivery or receipt of dividends, interests and royalties and other income "to" or "from" non-residents. 15

16 R&D and Government Incentives Rulings related to the use of intangible assets (i.e., as part of the patent box incentives), entered into pursuant to Art. 1, paragraphs 37 to 45, of the Law 190 of 23 December 2015; Opinions obtained under the ordinary, evidentiary and anti-abuse rulings (i.e. rulings carried out pursuant to Art. 11, par. 1, let. a) e c), Law n. 212/2000); Opinions obtained under the simplified ruling procedures, set forth by the regime of the cooperative compliance (i.e. rulings carried out pursuant to Art. 2, of the Legislative Decree n. 128/2015) Opinions obtained under the rulings on new investments (i.e. rulings carried out pursuant to Art. 2, of the Legislative Decree n. 147/2015) Any other agreement or opinion rendered on instances with similar effects presented under a law enacted after the subject decree. The exchange of information is activated, of course, only in cases where the object of the ruling is the interpretation or the application of rules, also of conventional origin, relating to the tax treatment of cross-border operations. R&D TAX CREDIT: amendments in the light of 2017 Budget Law The 2017 Budget Law (Law n. 232/2016), which is effective from January 1 st, 2017, foresees some important changes to the incremental R&D tax credit. The tax incentive has been introduced by Law Decree, art.3, n. 145/2013 (so called Destinazione Italia ) and amended by 2016 Budget Law. Regarding R&D tax credit see July 2015 and July 2016 Tax Alerts. The R&D tax credit changes foreseen in the 2017 Budget Law are aimed at improving the tax incentive effectiveness, also according to the Industry 4.0 Plan introduced by the Ministry for Economic Development. The tax incentive effectiveness is extended until December 31 st, 2020, instead of December 31st, Hence, the incremental R&D tax credit scheme is available for FYs 2015 through Moreover, according to art. 1, paragraph 15 (a), the scheme provides a 50% tax credit computed on the amount of all qualified expenditures exceeding the average R&D expenditures incurred during FYs 2012, 2013 and Prior to 2017, the law provided an incremental tax credit computed at a 25% or 50% credit rate depending on the nature of the incurred expenses. Important amendments concern commissioned research. Resident companies and permanent establishment of non-resident companies are eligible to benefit from the incentive with reference to R&D activities commissioned to companies resident in countries that allow an adequate exchange of information. Finally, all subjects carrying on an entrepreneurial activity are eligible to claim in each fiscal year up to EUR 20M tax credit (instead of EUR 5M), provided an annual minimum investment of EUR 30K. 16

17 2017 Budget Law: super-depreciation and hyperdepreciation The 2017 Budget Law (l. 232/2016) introduced strategic schemes aimed to the acquisition of new assets. In these regards: the 2017 Budget Law (a) extends the effectiveness of the Super-depreciation tax scheme and (b) introduces the new Hyper-depreciation tax scheme aimed to facilitate technological and digital transformation, with regard to the Industry 4.0 Plan. Law 208/2015, art.1, paragraph 91, introduced a 40% super-depreciation that applies to all subjects who carries out commercial or professional activities that purchase new tangible assets between October 15, 2015, and December 31 st, The depreciable base is increased to 140% of the acquisition cost. The 2017 Budget Law extends the effectiveness of the super-depreciation to investments in newly purchased assets until December 31 st, 2017, or until June 30, 2018, provided that the relevant purchase order has been accepted by the supplier and at least 20% of the purchase price has been paid within December 31 st, Unlike what previous stated, investments in employees vehicles can t benefit from the super-depreciation. The 2017 Budget Law (art.1 paragraphs 9) introduces a 150% hyper-depreciation tax scheme: it consists of a 150% increase of the acquisition cost for investments in new high-tech tangible assets listed in Appendix A to the 2017 Budget Law. With regard to the incentive, it s a 150% increase of the acquisition cost of the newly purchased assets, resulting in a 250% hyperdepreciation. The Appendix A lists newly purchased assets such as equipment and machinery which operation is controlled by computer systems and/or operated by suitable sensors and interconnected to factory s computer systems. As clarified by circular n. 4/E issued by Italian Revenue Agency on 30 March, 2017, in order to be eligible for 150% hyper-depreciation an asset needs to be defined as interconnected. An asset is interconnected if it exchanges information with internal systems (such as a management system, planning system, product design and development system, local or remote monitoring and control system, other plant machines, etc.) and/ or external systems (such as customers, suppliers, collaborative design and development partners, other production facilities, the supply chain, etc.) through a connection based on documented specifications where are publicly available and internationally recognised (such as: TCP-IP, HTTP, MQTT, etc.) and it is unequivocally identified, for the purposes of recognising the source of the information, through the use of internationally recognised address standards (such as an IP address). The beneficiaries of hyper-depreciation can benefit from the 40% increase of the acquisition cost for intangible assets listed in Appendix B to the 2017 Budget Law. The Appendix B lists intangible assets (software, system integration, platform, application) connected to new Industry 4.0 tangible assets. In order to benefit of hyper-depreciation the company has to produce a declaration by its legal representative or, in case of investments higher than 500,000 a sworn technical appraisal prepared by an expert or an engineer registered in the professional registers. The report must certify that the assets are included in Annex A to the 2017 Budget Law and that the assets are interconnected. 17

18 連絡先 今回のニュースレターに関するご質問 ご要望 又はイタリアでの税務問題等ございましたら 遠慮なく私ども STS Deloitte Japanese Services Group Italy にご連絡ください また ニュースレターが不要な場合 又は配信先の追加等のご希望に関しても 私どもにご連絡下さい STS Deloitte Japanese Services Group Italy - Japanese Services Group Country Leader Michele Crisci (Partner Tax) Tel: mcrisci@deloitte.it - Japanese Services Group Senior Manager 岸貴之 (Takayuki Kishi) Tel: ( 日本語直通 ) takakishi@deloitte.it - Japanese Services Group 野村美穂 (Miho Nomura) Tel: ( 日本語直通 ) mnomura@deloitte.it 注意 本資料は Deloitte Italy Japanese Services Group が現時点の情報をもとに細心の注意を払って作成しておりますが その正確性及び完全性を保証するものではありません 意思決定の際は 必ず現地専門家にご相談下さい Contacts This edition has been edited by Luca Bosco, Matteo Costigliolo, Dario De Santis, Alessandra Di Salvo, Michela Magnani, Barbara Rossi, Gianluca Trappolini. If you have any queries, please feel free to direct any questions to STS Deloitte Japanese Services Group Italy. STS Deloitte Japanese Services Group Italy - Japanese Services Group Country Leader Michele Crisci (Partner Tax) Tel: mcrisci@deloitte.it - Japanese Services Group Senior Manager Takayuki Kishi Tel: takakishi@deloitte.it - Japanese Services Group Miho Nomura Tel: mnomura@deloitte.it 18

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