On March 21, 2016, the Italian Tax Authority (the “ITA”) took steps to implement the international tax ruling procedure set forth by article 31-ter of Presidential Decree No. 600 of 29 September 1973, as recently amended by Legislative Decree No. 147 of 14 September 2015 (the “ITR Procedure”).
The ITR Procedure gives certain corporate taxpayers the possibility to obtain early confirmation from the ITA of the tax treatment on future income (i.e., income the taxpayer is expected to make over the following five years). The eligible taxpayers include, but are not limited to, resident companies controlled by or controlling non-Italian resident individuals, Italian taxpayers carrying on their activity through a foreign permanent establishment, and non-resident enterprises carrying on their activity in Italy through a permanent establishment (a “PE”).
The ITR Procedure could be invoked with reference to a wide variety of issues, including, for example:
- transfer pricing (including advance pricing agreements (APAs)) and assessment of asset values in the case of inbound or outbound transfer of residence for tax purposes,
- domestic and tax treaty rules concerning the attribution of profits and losses to Italian or foreign PE,
- existence of an Italian PE, or
- domestic and tax treaty rules applicable to cross-border dividends, interest, royalties and other income.
A company wanting to take advantage of the ITR Procedure must submit an application to the ITA Office for Advanced Rulings and International Disputes (Ufficio Accordi Preventivi e Controversie Internazionali). The application must be delivered by registered mail or in person, by the applicant or a duly authorised representative of the applicant. Moreover, the application must contain certain minimum essential information, as follows:
- identification (name, address, tax number and/or VAT number) of the company submitting the request and, in the case of a non-resident enterprise, the address of its Italian PE,
- indication of the scope of the tax ruling,
- documentation proving that the relevant enterprise meets the requirements necessary for activation of the ITA Procedure, and
- signature of the legal representative of the company submitting the request.
As a general guide, in the application the taxpayer must fully describe the issue under consideration and provide the ITA with all the documentation which could be relevant or useful for the ITA to properly understand the context of the issue under consideration and make an informed decision regarding the relevant tax treatment.
The entire ITA Procedure must be completed within 180 days from the receipt of the application, but the ITA can extend this period if it is required in order to obtain additional information from the applicant or from a foreign tax authority.
The rulings of the ITA following an ITA Procedure are binding on the taxpayer and the ITA for the fiscal year during which the ruling is issued and for the following four years, provided that the relevant factual and legal circumstances remain unchanged.
Please contact your usual Norton Rose Fulbright contact or Claudio Grisanti, partner, Head of tax (Italy) for more information.