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.
Without such a regulatory measure, the capital gains from qualified participations realised by the entities in question, falling within the scope of Article 67, paragraph 1, letter c) of the TUIR, would be subject to a taxation of 26% which, subject to the application of the Convention providing for double taxation in force with the Member State of the seller’s residence, would be much higher than that imposed on resident entities, on the same income (i.e. 1.2%, where the PEX regime is applied). In particular, the impact of the rule is absolutely relevant considering the Conventions providing for double taxation, both in the State of residence of the seller and in the State of residence of the company whose participation is transferred, such as the Italy-France Convention.
This rule therefore allows for the submission of refund claims within forty-eight months, in accordance with Article 38 of Presidential Decree No. 602/1973, for the greater Italian tax paid by EU and EEA companies (in this case, French companies) that would have benefited from the PEX regime if resident in Italy.