Italian Taxation of Companies and Businesses

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Italian Supreme Court in judgment n. 8487 of April 8, 2009 placed upon taxpayers the burden to prove the existence of valid economic reasons to avoid the application of anti abuse provision and denial of tax benefits in tax avoidance transactions. The decision contradicts a previous ruling, n. 1465 issued on January 21, 2009 in which the burden of proof was placed upon the tax administration.…

New law targets the use of sale and repurchase agreements and securities lending transactions for tax advantages. According to the new law, the repo buyer or borrower in a securities lending transaction is eligible for tax benefits such as credits for withholding taxes or foreign taxes or participation exemption for dividends on stock, only if and to the extent those benefits could be attributed to the repo seller or securities lender. The new provision is aimed at stopping transaction such as dividend washing or dividend stripping, in which the a holder of securities who would not be eligible for certain tax benefits, transfer those securities to an accommodating party, who collects the benefits, in exchange for an equivalent economic consideration.…

Italy authorized the ratification of the new U.S.-Italy tax treaty (the “1999 Treaty”), together with a protocol and memorandum of understanding.

The 1999 Treaty shall enter into force on the date on which the instruments of ratification are exchanged and shall apply to taxable periods beginning on or after the first day of the following year.

However, for withholding taxes, the 1999 Treaty shall apply to payments made or accrued on or after the first day of the second month following its entry into force.

The 1999 Treaty contains several new important provisions, including provisions on limitation on benefits, arbitration, branch profits tax, reduced withholding rates, creditability of the Italian regional tax on production activities, and application of treaty benefits to partnerships.…

Italian Supreme Court denied treaty benefits to dividends paid to a US limited partnership. US LP did not qualify for treaty benefits under the US-Italy treaty since fiscally transparent in the US. A Japanese fund member of the US LP failed to qualify for treaty benefits under the Italy-Japan treaty since it was not the legal recipient of the dividend.…

Italy’s Tax Administration in ruling 54 of March 3, 2009 clarified that debt instruments issued by Italian limited liability companies (SRLs) can qualify as debt obligations for tax purposes, and interest paid thereunder can be eligible for the exemption from Italian tax (portfolio interest exemption) fore foreign investors, if the instrument is not part of a permanent establishment of the foreign investor in Italy and the foreign investor otherwise qualifies for the exemption by reasons of being resident or domiciled in an approved jurisdiction (white-listed country).…