With its ruling n. 693 of October 8, 2021 (Prassi – AGENZIA DELLE ENTRATE – Risposta 08 ottobre 2021, n. 693), the Italian Tax Agency held that a discretionary beneficiary of a foreign irrevocable trust, treated as a fiscally opaque trust under Italy’s tax classification rules, is required to report his beneficial interest in the trust on his Italian income tax return.
Italian international tax reporting rules requires that Italian resident taxpayers disclose their beneficial interest in (financial, tangible, intangible and real estate) assets held outside of Italy. Reporting is done by filling out section RW of Italian personal income tax return. The duty to report is established in article 4 of Law Decree n. 167 of 1990 In its original formulation, the provision of section 4 requires reporting of foreign assets that the taxpayer owns, directly or indirectly, and which can generate foreign income taxable in Italy. Later on, the reporting was extended to those who are the “beneficial owners” of the reportable foreign assets. For the meaning of the term “beneficial owner”, the amended statute refers to the anti money laundering legislation implementing the EU anti money laundering directives. Under the anti money laundering statute, in case of trusts, for anti money laundering purposes a beneficial owner includes the settlor, guardian, trustee and beneficiaries of the trust.
In some of its previous guidance, the Italian Tax Agency had clarified that the notion of “beneficial owner” for international tax reporting purposes has a narrower meaning, and requires a beneficial interest relationship between the taxpayer and the trust’s income or assets. Under its narrower meaning, a trustee or settlor of the trust do not qualify as beneficial owners and are not subject to reporting (see Circular 53/E of December 23, 2013, Resolution n. 53/E of May 29, 2019, Resolution 506 or October 30, 2020).
Ruling n. 693 concerns a foreign (non Italian) irrevocable discretionary trust, in which the trustee at his absolute discretion can decide to make distributions to certain individuals that belong to a certain class (settlor’s descendants). The trust would be classified as a foreign, opaque (fiscally non transparent) trust, whose income, in the absence of a beneficiary’s right to claim distribution of income from the trustee, is attributed to the trust for Italian income tax proposes and it is not directly taxable upon the trust beneficiaries. According to the taxpayer, the tax duty to report under Law Decree n. 167 requires that a trust beneficiary has control over or a right to receive distributions from the principal of the trust, or has a direct and current claim to the distribution of trust income. Consequently, there should not be duty to report with respect to a foreign irrevocable discretionary trust.
The Italian Tax Agency ruled against the taxpayer and held that a purely discretionary beneficiary of a discretionary trust, if sufficiently identified, also by reference to a class of beneficiaries, must report his beneficial interest in the trust. Reporting should include the value fo the trust and the beneficiary’s share of interest in the trust. In case of a discretionary income beneficiary who is not entitled to receive a specific share of the principal of the trust, reporting may proved to be practically impossible. Indeed, the Italian Tax Agency’s filing software requires that a share is always specified on the turn, and when no share is indicate the filing does not go through.
Ruling n. 693 is consistent with the position taken by the Italian Tax Agency in a draft Circular submitted to public discussion in August 2021, and about to be published in its final form. The draft Circular provides updated guidance on Italian taxation of trusts, and confirms the approach directed at expending the scope of reporting of Italian taxpayers’ beneficial interests with respect to foreign trusts. Penalties for failure to report are substantial, and taxpayers should continue. monitoring the developments in this area to make sure they will stay in compliance with their Italian tax reporting obligations.