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The Tax Authority censures, for ethical purposes, outgoing shareholder reinvestment of in the context of an MLBO transaction

In response to advance tax ruling no. 22/2024, the Tax Authority confirms the previous position taken with legal principle no. 1 of 2019, whereby it deemed that the reinvestment made by the outgoing shareholders, in the absence of offsetting by the credit accrued from the transfer of the shareholdings, constitutes an undue use of the ACE benefit censurable pursuant to Article 10-bis of Law no. 212/2000, given (i) the circularity of the transaction i.e. its inability to produce appreciable economic effects beyond obtaining an undue tax advantage and (ii) the failure of the outgoing shareholders to introduce new financial resources into the company, but the mere circularity of the cash flow.

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No incompatibility between EU Directive 2022/2523 on Global Minimum Tax and the EU principle of freedom of establishment

With the publication in the Official Gazette of Legislative Decree No. 209 of 27 December 2023, Italy formally implemented the provisions set forth in EU Directive 2022/2523, aimed at reducing situations of tax base erosion and profit shifting to States or territories with a favourable tax regime, through the provision of a global minimum tax (so-called Global Minimum Tax) to be applied to multinational or domestic groups with annual revenues, as resulting from the consolidated financial statements of the parent company, no lower than EUR 750 million in two of the four financial years preceding the current one.

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The Budget Law 2024 provides for the extension of the PEX regime to EU entities without a permanent establishment in Italy

Article 1 para. 59 of Law No. 213 of 30 December 2023 (Budget Law 2024) introduces paragraph 2-bis to Article 68 of Presidential Decree No. 917/1986 (TUIR) providing for the extension of the participation exemption rules to capital gains deriving from the transfer of qualified participations, having the same requirements applicable to resident entities, made by foreign companies (i) without a permanent establishment in Italy, (ii) resident in an EU or EEA State that allows for a proper exchange of information and (iii) subject to corporate income tax.

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The VAT deductibility paid on transaction costs incurred by an SPV in the context of an MLBO transaction was also upheld upon appeal

With ruling No. 3755, filed on 20 December 2023, the Superior Tax Court of Lombardy confirmed the decision ruled on by the trial court (ruling No. 3361 filed on 5 December 2022) on the VAT deductibility paid by a Special Purpose Vehicle (SPV) on transaction costs (notary fees, consultancy, due diligence, etc.) incurred in connection with a Merger Leveraged Buy-Out (MLBO) transaction.

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Article 5 of Legislative Decree No. 209 of 27 December 2023, implementing the international tax reform, profoundly redefines the impatriate regime set out in Article 16 of Legislative Decree No. 147 of 14 September 2015, providing for its repeal

According to the literal wording of the rule, “The provisions of this Article shall apply in favour of persons who transfer their tax residence to Italy starting from the 2024 tax period […]” and, similarly, the previous regime is still applicable “[…] in favour of persons who have transferred their registered residence to Italy by 31 December 2023 […]”.

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In response to advance tax ruling no. 22/2024, the Tax Authority confirms the previous position taken with legal principle no. 1 of 2019, whereby it deemed that the reinvestment made by the outgoing shareholders, in the absence of offsetting by the credit accrued from the transfer of the shareholdings, constitutes an undue use of the ACE benefit censurable pursuant to Article 10-bis of Law no. 212/2000, given (i) the circularity of the transaction i.e. its inability to produce appreciable economic effects beyond obtaining an undue tax advantage and (ii) the failure of the outgoing shareholders to introduce new financial resources into the company, but the mere circularity of the cash flow.
With the publication in the Official Gazette of Legislative Decree No. 209 of 27 December 2023, Italy formally implemented the provisions set forth in EU Directive 2022/2523, aimed at reducing situations of tax base erosion and profit shifting to States or territories with a favourable tax regime, through the provision of a global minimum tax (so-called Global Minimum Tax) to be applied to multinational or domestic groups with annual revenues, as resulting from the consolidated financial statements of the parent company, no lower than EUR 750 million in two of the four financial years preceding the current one.
Article 1 para. 59 of Law No. 213 of 30 December 2023 (Budget Law 2024) introduces paragraph 2-bis to Article 68 of Presidential Decree No. 917/1986 (TUIR) providing for the extension of the participation exemption rules to capital gains deriving from the transfer of qualified participations, having the same requirements applicable to resident entities, made by foreign companies (i) without a permanent establishment in Italy, (ii) resident in an EU or EEA State that allows for a proper exchange of information and (iii) subject to corporate income tax.
With ruling No. 3755, filed on 20 December 2023, the Superior Tax Court of Lombardy confirmed the decision ruled on by the trial court (ruling No. 3361 filed on 5 December 2022) on the VAT deductibility paid by a Special Purpose Vehicle (SPV) on transaction costs (notary fees, consultancy, due diligence, etc.) incurred in connection with a Merger Leveraged Buy-Out (MLBO) transaction.
According to the literal wording of the rule, “The provisions of this Article shall apply in favour of persons who transfer their tax residence to Italy starting from the 2024 tax period [...]” and, similarly, the previous regime is still applicable “[...] in favour of persons who have transferred their registered residence to Italy by 31 December 2023 [...]”.
Article 9, paragraph 1, letter b), numbers 1) and 2) of the Enabling Act for Tax Reform has provided for a substantial change to the regulation of shell companies, in order to bring the rule back to its original purpose
Article 16 of the 2024 Budget Law, currently in drafting phase, extends the participation exemption rules also to capital gains deriving from the transfer of qualified participations

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