In its ruling n. 21614 of October 26, 2016 Italy’s Supreme Court considered the issue of the application of the gift tax upon the transfer of property to a trust. The issue arises under the provisions of Law n. 262 of October 3, 2006, which reinstated the gift tax. Article 2 of Law 262, at
Italy’s tax residency for foreign taxpayers buying Italian real estate, and spending significant time in Italy for pleasure or business continues being a very critical and challenging issue. Italy assigns tax residency of individuals based on residence, which means fixed place of living ; domicile, which means main center of interests, or registration on the…
Italy’s Supreme Court’s decision n. 6501 of March 31, 2015, dealing with the case of an Italian citizen who had most of his personal and family connections in Italy but moved to work in another country (Switzerland), where he had most of his economic and financial interests, ruled that the taxpayer’s economic and financial connections…
Italian resident taxpayers are required to report all of their assets held outside of Italy, on form RW of their Italian income tax returns (which include various sections and can be considered the equivalent of the FBAR and other international tax returns that are required to be filed in the United States).
Resident taxpayers subject…
Italy enacted a new law that significantly amends its rules requiring Italian resident individual taxpayers to report their foreign financial investment and accounts and other assets capable of generating foreign source taxable income.
SCOPE OF REPORTING
The fist significant change reduces the scope of the reporting. it eliminates the duty to report intra year transfers…
Italy does not have domestic rules on trust.
However, trusts created under foreign law are recognized and enforceable in Italy pursuant to the provisions of the 1985 Hague Convention on the Law Applicable to Trusts and Their Recognition, which has been ratified and implemented and is fully effective in Italy as part of Italian legal system.
The Hague Convention was signed on July 1, 1985 and ratified in Italy with law n. 364 of October 16, 1989 and entered into force on January 1, 1992. It is aimed at harmonizing the private international laws of the contracting states relating to trusts; provides that each contracting state recognizes the existence and validity of trusts created by a written trust instrument; sets out the general characteristics of a trust and establishes rules for determining the governing law of trusts with cross-border elements.
According to the Convention, as implemented in Italy, a trust created pursuant to and governed by the law of a country that has provisions governing trusts is recognized and valid in Italy, subject only to the overarching limitation of Italian public order principles.
Purely internal trusts, with Italian grantors, Italian beneficiaries and assets located in Italy are also recognized.
With the Finance Bill for 2007 Italy enacted, for the first time, specific provisions dictating the tax treatment of trusts for Italian tax purposes. They establish general principles on tax classification and treatment of trusts in Italy for income and indirect tax purposes and have significant cross-border implications
On August 6, 2007 Italy’s tax administration issued Circular n. 48/E that provides administrative guidance on the interpretation and application of the new tax provisions on trust. Circular 48/E clarifies the tax treatment of trusts both for income tax and transfer (indirect) tax purposes.
Subsequently, Italy’s tax administration issued additional interpretative guidance by way of Circular n. 61/E issued on December 27, 2010.
Generally, for a trust to exist as a legal and tax entity separate from the grantor, the trustee and its beneficiaries, there must be a real and effective legal separation of the trust’s assets from both the estate of the grantor and the beneficiaries of the trust and the trustee must be granted with real powers of administration of the trust, acting independently from and not being under the direct or indirect control of the grantor or beneficiaries of the trust.
Once it is positively established that a trust actually exists, as a general rule, for income tax purposes trusts are classified as separate taxable entities and taxed as corporations.
However, trusts with income beneficiaries that are identified and named in the trust agreement are treated as fiscally transparent entities – that is, income is attributed to the beneficiaries as provided for in the trust agreement, regardless of whether and how the trust distributes its funds, and the beneficiaries are taxed directly on their share of trust’s income. This fiscally transparent treatment applies also in the event that after the initial creation of the trust, the trustee determines the income beneficiaries of the trust pursuant to the authority granted in the trust agreement.
A trust is resident in Italy for tax purposes if its place of management or place of activity is located in Italy. Trusts formed in jurisdictions that do not allow exchange of information with Italy are treated as residents and subject to worldwide taxation in Italy, if certain connections with Italy exist (for example, if any grantor or beneficiary is Italian), unless taxpayers provide sufficient evidence that they are resident (that is, effectively managed) outside of Italy.
Trusts must keep tax books to compute their taxable income (taxed upon the trust in case of fiscally non transparent trusts, or passed through to and taxed upon the beneficiaries in case of fiscally transparent trusts).
A gratuitous transfer of assets to a trust is subject to gift or estate tax. The tax is charged at reduced rates (4 and 6 per cent) if beneficiaries named in the trust agreement or determined by the trustee at any time thereafter are close family members. Otherwise, the regular rate for trusts with no identified beneficiaries or beneficiaries that are not close family members or charitable trust is 8 per cent.
Italian Supreme courts reverses course on the issue of re-characterization of an Italian foreign owned company as permanent establishment of its foreign parent. The decisions seems to depart significantly from previously established case law stemming from the Supreme Court’s decisions in the Philip Morris case and provide more clarity to foreign businesses interested in expanding into Italy…
Continue Reading Italian Supreme Court Reverses Course on Permanent Establishment Issue
The European Commission confirmed that Italian anti inversion rules treating foreign companies owned or controlled by Italian national and owning or controlling Italian companies as Italian resident companies subject to tax in Italy do not violate EC law to the extent that they are designed to combat tax evasion and provide taxpayers with a reasonable opportunity to rebut the tax residency presumption and treat the foreign company as foreign and outside Italian tax net…
Continue Reading European Commission Blesses Italy’s Anti-Inversion Rules
Italian tax administration provided clarifications that expand the application of Italian CFC rules. In particular, the administration explained that income from contract manufacturing activities and income from purchases or sales of related party products count as passive income for the purpose of applying the passive income test that triggers the application of the rules to controlled foreign companies organized in non black listed jurisdictions. The clarifications pose additional burden on international tax planning of Italian multinationals.
Continue Reading Italian Tax Agency Extends Scope of CFC Rules
Italy’s Tax Administration provided additional clarifications on Italian taxation of trusts. In particular, Circular n. 61/E issued on December 27, 2010 addresses the situations in which a trust is disregarded as abusive or fictitious interposition between the settlor and the assets and income of the trust and must be disregarded for tax purposes. Circular 61/E expanded the list of examples of abusive situations and shows the administration’s willingness to contrast the use of trusts for tax avoidance purposes.
Continue Reading Italy’s Tax Administration Issued Additional Clarifications on Italian Taxation of Trusts