Italy-USA: new convention against double taxation

ABSTRACT - On January 1st 2010 entered into force the new Convention against double taxation signed by Italy and the U.S. on August 25th 1999. The exchange of the tools of ratification between the two countries took place on December 16th 2009.

1. Premise

The new double taxation convention between Italy and the United States entered into force on 1 January 2010. The exchange of instruments of ratification between the two countries took place December 16, 2009. The new US-Italy Convention, which was ratified in Italy by Law March 3, 2009, No 20 strengthens the bilateral relations between the two countries and replaces the previous agreement signed in Rome April 17, 1984 and entered into force in December 1985 (hereafter "1985 Convention").Please note that the aforementioned Article. 28 provides a safeguard clause which requires the application of the provisions previously in force if more favorable, for a transitional period of twelve months from the date of effect of the provisions contained in the new Convention.

2. Generality 
As a result of new provisions, the commercial and financial relations between the companies operating between Italy and the United States is more feasible from the point of view of taxation. With regard to dividends and interest, with the removal of barriers to tax productive investment and financial, is promoting exchanges and mutual investments between the Contracting States. On the one hand, is in fact eliminated the intermediate rate of withholding on dividends, on the other hand, there is a reduction of tax on interest on money borrowed from companies resident in the two States, by virtue of the reduction, from 15% to 10% of the rate of withholding tax and the introduction of new approaches for total exemption. With regard to royalties, less costly treatment is evident in the use of trademarks and patents, copyrights of literary, scientific or artistic work, due to the anticipation of an exemption from tax on its income. In addition, it favors the transfer of technology, namely, computer software and industrial, commercial or scientific equipment. Even the transfer pricing disputes between the Italian and U.S. tax authorities can be more easily resolved, following the introduction of a procedure (called "arbitration"), to which the taxpayer may be met if the competent authorities are not involved able to reach the settlement of the dispute amicably. In this way, should be further guaranteed the elimination of double taxation for corporate groups. It is also planned an anti-abuse rules, through the introduction of the "Limitation on benefits clause" ("Lobc"), of which art. 2 of the Protocol. Specific anti-abuse provisions, provided the original text of the Convention with respect to individual categories of income (dividends, interest, royalties and other income) have been eliminated by the exchange of notes between the Embassy of the United States of America and the Italian Ministry of Foreign Affairs, which ended in February 2007. Another new feature is the ability for companies of the Contracting States to benefit from the provisions of agreements with IRAP reference. In the United States, the ratification procedure was completed in much more rapid than in Italy. The U.S. Senate, in fact, exclusive jurisdiction on the matter, has done so to ratify the new Convention in the same year in which it was signed (1999), with Resolution 145 Cong. Rec S 14225 of November 5, 1999. Subsequently, the United States have taken steps to make certain changes to the text originally signed that required an exchange of notes between the contracting countries. In his note of April 10, 2006, the Embassy of the United States of America, in accordance with Art. 26 of that Convention, forwarded to the Italian Ministry of Foreign Affairs a request for the elimination of the final provisions of some articles. The Italian Ministry of Foreign Affairs, with the next note of February 27, 2007, granted the request, and therefore were removed from the text originally signed the final provisions of the Articles. 10 (Dividends), 11 (Interest), 12 (Royalties) and 22 (Other Income), which provide: "The provisions of this Article shall not apply if the main purpose or one of the primary purposes of a person interested in the creation or transfer of shares or other rights in respect of which the dividends are paid has been to get the benefits of this Article by means of that creation or transfer of that ", together with references to the aforementioned provision of the (previous) paragraph 19 art. 1 of the Protocol to that Convention. The new provisions of the Convention shall apply: in respect of taxes withheld at source, for amounts paid or credited on or after 1 January following the date on which the new Convention enters into force; in respect of other taxes, for taxable periods beginning on or after 1 January following the date of entry into force of the Convention. We illustrate below, in detail, the most important provisions of the new Convention between Italy and the United States - relating to the taxation of legal persons - which present novelties compared to the corresponding provisions of the Convention in 1985.

3. The taxation of dividends, the SO-CALLED "Branch profits tax" and the imposition of Ric and Reit: Art. 10
The main novelties of the new Convention, compared to that of 1985, are represented: the elimination of the intermediate (10%) of the applicable withholding tax; the introduction of the possibility for Contracting States to apply an additional tax (known as "Branch Profit Tax"); the introduction of special provisions in relation to dividends paid to government agencies recognized. The new agreement gives the power to subject to tax dividends to the State of residence of the beneficiary, enabling the State of residence of the distributing company to apply a withholding tax rates under the conventional assumption that the beneficial owner is a resident of the other State.In particular, the new Convention provides that the taxation in the source state may not exceed: 5% of the gross amount of dividends if the beneficial owner is a company that owned at least 25% of the voting shares of the company paying the dividends for a period of 12 months ending on the date on which the dividends are declared; 15% of the gross amount of the dividends in all other cases. Compared to the 1985 Convention, the new Convention has therefore deleted the intermediate rate of 10% and decreased from 50% to 25% of the voting rights, the participation threshold required for the application of the reduced rate of 5 %. It remains, however, unchanged the minimum period of ownership of the investment, equal to 12 months required for the application of the benefit in question. For the conventional scheme is applicable to dividends paid by a resident of a Contracting State to a resident of the paragraph to Article 10. 10 of the new Convention, according to the present formulation of the date of signing the same, requires that data subjects have not been established, or interests in respect of which the dividends are paid have not been transferred for the sole purpose of obtaining the benefits conventional.In the event that dividends are subject to withholding tax in a Contracting State in accordance with national law, the new Convention provides, according to art. 5 of the Protocol, provided that the limitation to the imposition by the Convention can be implemented by the procedure of reimbursement. Taxes withheld at source may be required to reimburse the taxpayer with a request in terms and in the manner prescribed by the law of that State, the instance must be attached to an official document, issued by the State of which the taxpayer is a resident certifying the whether the conditions for the application of conventional benefits.
The SO-CALLED "Branch profits tax". Unlike the 1985 Convention, the new Convention provides the possibility for Contracting States to apply an additional tax compared to those provided by the Convention (article. 2) on the profits of the permanent establishment of a legal person resident in another State, the conditions and limits specified. 10, paragraph 6 of the Convention. Under Article. 10, paragraph 6 of the new Convention, "a legal person who is a resident of the States and has a permanent establishment in that State or is liable to tax in the State based on its net income may be taxed in State under Article 6 (Income Property) or under paragraph 1 of Article 13 (Capital Gains) may be subject to tax in that other State with respect to additional taxes covered by the other provisions of this Convention. "With reference to the tax base of the branch profit tax, the new Convention states that it is attributable to the share of business profits attributable to foreign legal person's permanent establishment or the portion of income subject to tax pursuant to Art. 6 (Income Property) or under Article. 13, paragraph 1 (Capital Gains). Conventional purposes, the taxable amount consists of the branch profit tax, as regards the United States, the amount equivalent to the dividends of such profits or income, as regards Italy, by a similar amount to the amount equivalent of the dividends. As provided by Section 884 of the Internal Revenue Code U.S., the amount subject to tax profit Branch is not limited to current earnings of the branch, but also includes those relating to previous years, accumulated at the branch to increase the equity of the same. Unlike other bilateral agreements, such as, for example, the Convention between the United States and the Netherlands, the new Convention contains no provision that limits the application of the branch profit tax profits accumulated after the entry into force of the Convention, therefore, the tax in question could also be applied to profits earned by a U.S. branch of an Italian company in the period preceding the entry into force of the Convention. It notes that the provision allows a Contracting State to apply an additional tax the profits of the permanent establishment of a company resident in the other there is, indeed, in potential conflict with the provisions of art. 24, paragraph 2 of the Convention regarding non-discrimination, according to which "the imposition of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State may not be in that other State less favorably levied in levied on enterprises of that other State carrying on the same activities. " Paragraph 18 of Article. 1 of the Protocol places an express exception to this covenantal principle by providing that Article. 24, including those referred to in that paragraph 2, shall not be construed as preventing either Contracting State to levy a tax which is set forth in paragraph 6 of art. 10 (nonprofit tax Branch).
The imposition of Ric and Reit. The new Convention introduces special provisions in relation to dividends paid to government agencies recognized. Pursuant to paragraph 8 of Art. 10, the dividends distributed to a "government agency recognized" which holds, directly or indirectly, 25% of the voting shares of the distributing company, regardless of holding period, shall be taxable only in the country of residence of the recipient, provided that the latter was the true beneficiary. Paragraph 9 of article. 10 introduces special provisions in respect of dividends distributed by the Regulated Investment Company ("Ric") and Real estate investment trusts ("REITs"). Dividends distributed by the Reit Ric and may also be subject to tax in the source state, but according to a tax rate not exceeding 15%. The new Convention welcomes the provisions in issue, the U.S. Model Convention of 20 September 1996 and aims to prevent the use of the above entities by shareholders resident in other States in order to obtain undue tax savings. The holding of an interest in a Ric would enable a foreign investor to obtain the application of the conventional 5%, although they have actually, by the same entity, a diversified portfolio of equity investments which, if held directly, would the 'application of the conventional 15% higher. Similarly, a foreign investor may obtain profits from the redevelopment of property in dividends, holding the same through involvement in a Ric and thus taking advantage of tax savings resulting from application of the reduced dividend conventional (instead of the higher tax applicable to profits from real estate).

4. Interest: Art. 11
The main novelties of the new Convention, compared to that of 1985, are represented: the reduction of the applicable withholding tax; the introduction of the exemption from taxation in the source state of interest due to the delayed payment in respect of purchases of goods, services and equipment. The Art. 11 of the new Convention provides for the taxation of savings income in the State of residence of the recipient. However, the interest may also be taxed in the source state, although in accordance with the conventional rule, namely the extent of 10%, whereas the rate provided by the Convention of 1985 is 15%. The standard defines the conventional interests of the "income from government securities, bonds, loans or not secured by mortgage and whether or not carrying a right to participate in profits and claims of every kind as well as all other income assimilated to income from money dates on the loan according to the laws of the State from which the income arises". With reference to the Italian law Art. 26 of Presidential Decree September 29, 1973, No 600, as amended by Legislative Decree no. November 21, 1997, No 461, determines the taxation of interest paid to non-residents without permanent establishment in Italy, through the mechanism of withholding tax of 12.5% ​​and 27% depending on the type of income.
The taxation of interest on deferred payment. The Art. 11 of the new Convention covers the circumstances under which the interest may be taxed only in the State of residence of the beneficiary, to the exclusion of the application considered in the source state. This provision applies if: the recipient of the interest is a resident of Contracting State and is recognized as a government agency that owns, directly or indirectly, less than 25% of the capital of the person paying the interest; the interest is paid in respect of loans guaranteed or insured by a government agency acknowledged that Contracting State or Contracting State and derived by a resident of the other Contracting State who is the beneficial owner; the interest is paid or accrued on a credit sale of goods, merchandise or services of one undertaking to another undertaking, or the interest is paid or accrued in connection with the sale on credit of industrial, commercial or scientific equipment.

5. The taxation of royalties: art. 12 
The new Convention also introduces some significant changes with respect to provisions relating to the imposition of royalties. The main new features compared to the 1985 Convention were represented: elimination of withholding tax on royalties for the use of copyright of literary, artistic or scientific work; introduction of a rate not exceeding 5% for royalties paid for the use of software and industrial, commercial or scientific equipment. Under Article. 12 of the Convention of 1985 different types of royalties are taxed at different rates: the rate of 5% shall apply to remuneration for the use of or right to use, any copyright of literary, artistic or scientific work; the rate of 8% applies to fees paid for use of the right to use cinematographic films or films, tapes or other means of reproduction for radio or television; the rate of 10% applies to compensation paid in all other cases. The new Convention provides for the taxation rather unique in the State of residence of the recipient and the consequent exclusion of the application of withholding tax, if it is the beneficial owner of the royalties paid as a result of use or right to use a copyright of literary, artistic or scientific work. It is also planned, the application of a tax not exceeding 5% to the fees paid for use or lease of computer software, or industrial, commercial or scientific equipment. In all other cases, apply the conventional rate of 8%. 

6. The anti-abuse provisions 
The anti-abuse provisions under the new Convention, according to the present formulation the date of execution thereof, may be divided into two categories: specific clauses relating to certain categories of income (dividends, interest, royalties and other income); general clause "Limitation on benefits" ("Limitation on benefits clause", called "Lobc"), contained in art. 2 of the Protocol. 
6.1. The specific anti-abuse provisions. The common theme of anti-abuse provisions specifications, contained in the text of the Convention signed in 1999, is to not allow the application of the Convention, in relation to the categories of income to which they relate, in cases where the main purpose (or one of the main purposes) of the person receiving the income is to get the benefits applicable under Article reference. The provisions in question (Article 10, paragraph 10 in respect of dividends, Art. 11, paragraph 9 in respect of interest, Art. 12, paragraph 8 in respect of royalties, Art. 22, paragraph 3 on other income) establish, in fact, that the provisions to which they refer can not be applied if the main purpose (or one of the main purposes) of the person concerned to the creation or transfer of shares, loans or other rights in respect of which interest is paid, dividends, royalties or other income is to obtain the benefits provided by them, by means of that creation or transfer of that.The terms described are inspired by the SO-CALLED "Substance-over-form principle" and are also called the application principle of "bona fide commercial purpose". In his note of April 10, 2006, the Embassy of the United States of America, in accordance with Art. 26 of that Convention, forwarded to the Italian Ministry of Foreign Affairs a request for deletion of specific anti-abuse provisions as follows: "(...) Ratification of the Convention by the Government of the United States of America is subject to the deletion of the final paragraph of Article 10 (Dividends), the final paragraph of Article 11 (Interest) in the final paragraph of Article 12 (Royalties), the final paragraph of Article 22 (Other income) of the Convention and paragraph 19 of Article 1 of the Protocol, with the renumbering of paragraph 20 of Article 1 of the Protocol as paragraph 19... " The Italian Ministry of Foreign Affairs, with the next note of 27 February 2007, accepted the foregoing request, and therefore were removed from the text originally signed the final provisions of the Articles. 10 (Dividends), 11 (Interest), 12 (Royalties) and 22 (Other Income), which provide: "The provisions of this Article shall not apply if the main purpose or one of the primary purposes of a person interested in the creation or transfer of shares or other rights in respect of which the dividends are paid has been to get the benefits of this Article by means of that creation or transfer of that ", together with references to the aforementioned provision of the (previous) paragraph 19 art. 1 of the Protocol to that Convention. 
6.2. The "Limitation on benefits clause" ("Lobc") pursuant to Art. 2 of the Protocol. The introduction of anti-abuse provisions in the agreements, especially in the form of so-called clauses "Limitation on benefits", aimed at preventing conventional benefits also apply to persons who do not have (enough) economic link with the State contractor, is a constant characteristic of conventional U.S. practice. The Art. 2 of the Protocol to the Convention provides a comprehensive new Lobc aimed at preventing non-residents of either Contracting State constitute a structure or carry out investments in the two Contracting States, in order to take advantage of the main provisions of the agreement (so-called "treaty shopping"). This is done by excluding from the application of some or all of the benefits of the Convention of persons who are not able to pass at least one of the tests designed to ensure that the residence has not been established in a Contracting State with conventional intent to obtain benefits. The aim of each of the tests required by Lobc is therefore to verify the existence of a real link between the person who will benefit from the provisions of agreements and the Contracting State in which it resides.According to the interpretation of the U.S. tax authorities - contained in the technical report to the U.S. Model Convention and the individual agreements concluded by the United States - the application of Lobc be supplementary to the provisions of anti-abuse provided by the individual national laws. Similarly, anti-abuse provisions to such internal Lobc is also guided by the principle of "bona fide business purpose" is directly linked to that of the "substance-over-form".
The Lobc foreseen by the Convention of 1985. The Convention of 1985 provided (in the Protocol) a Lobc, resulting art. 16 Use of the Model Convention of 1981, albeit with more limited scope.The Art. 2 of the Protocol to the Convention of 1985 is in fact applicable only to persons (other than natural persons) resident in a Contracting State and only in relation to certain categories of income, especially those governed by the Articles. 7 (business profits), 10 (Dividends), 11 (interest), 12 (Royalties), 13 (capital gains) and 22 (other income). The tests contained in Art. 2 of the 1985 Protocol to the Convention shall apply only when the competent authority of a Contracting State finds, on the basis of a preliminary assessment, that the constitution, acquisition or retention of a given subject, and the exercise of its activities, has as main purpose to obtain benefits under the Convention. They are, in summary: the "ownership test", whereby more than 50% of the company must be owned, directly or indirectly, by one or more natural persons resident in a Contracting State or by citizens of the United States, the states themselves, or by listed companies resident in a Contracting State; the "publicly traded test", whereby, if the company is listed, its principal class of shares must be subject to substantial and regular trading on a recognized stock exchanges.

The basis of the new Convention Lobc. Under the Protocol of the new Convention, the granting of such benefits is subject to the fulfillment of conventional least one of the six tests contained in the second paragraph of Article. 2 of the Protocol itself. In particular, a resident of a Contracting State is entitled to enjoy the benefits if it is conventional: a) a natural person; b) a recognized government agency; c) a company that satisfies the SO-CALLED "Publicly traded test" or the SO-CALLED "Subsidiary of publicly traded test"; d) an organization defined in Article. 1, paragraph 5 (a) (i) of the Protocol; e) a pension fund; f) a person, other than a natural person who satisfies both the SO CALLED "Ownership test" is the SO-CALLED "Base erosion test". For companies resident in a Contracting State, provided the first test is called the Lobc "Publicly traded test", which provides that all actions included in the class (or classes) of shares representing more than 50% of the voting rights and value of society itself, are regularly traded on a recognized stock exchange. The test in question applies to all shares of the company if the latter has only one class of shares or all shares of the principal class of shares, that class of shares representing more than 50% of the voting rights and the value of the company, if it has multiple classes of shares. The new Convention does not define the term "regular trading", whose interpretation can be derived in the light of the domestic laws of the Contracting States. The definition of "recognized exchange" is instead provided for in paragraph 5 of Lobc, it coincides with the one included in the Convention of 1985, but differs from that contained in paragraph 5 of art. 22 Use of the Model Convention of 1996, which are not included in the stock exchanges mutually recognized by the competent authorities of the Contracting States.By virtue of the SO-CALLED "Subsidiary of publicly traded test" requires that a company is controlled by other listed companies resident in one of the two Contracting States whose shares are traded on recognized exchanges. More precisely, at least 50% of each class of shares of the company must be owned, directly or indirectly, by no more than five companies that are entitled to benefit from the Convention within the meaning of "publicly traded test" previously examined. In the event that the listed company hosts an indirect control on the companies audited, it is necessary that each person has an intermediate in the chain of participation, in turn, entitled to the benefits of the Convention. The "subsidiary of publicly traded test" is applicable only in cases where the participants of the intermediate-resident company (going along the investment chain to the listed company) resident in a Contracting State and satisfy at least one test of Lobc. The test in question can not be applied to groups in which the parent companies listed (resident in a Contracting State) indirectly controls a company resident in the other Contracting State through one or more intermediate companies located in third countries. The letters d) and e) of paragraph 2 of art. 2 grant benefits to conventional tax-exempt organizations and residents in one of the Contracting States (as defined in Art. 1, paragraph 5 (a) (i) of the Protocol) and pension funds (defined in art. 1, paragraph 5 (a) (ii) of the Protocol), provided that more than 50% of the beneficiaries, members or participants of the latter are individuals resident in a Contracting State.Finally, the letter f) of paragraph 2 of art. 2 provides a test (residual), which implies, in turn, two sub-tests that must be fulfilled simultaneously: the SO-CALLED "Ownership test"; the SO-CALLED "Base erosion test."'S "ownership test" requires that at least half of the tax period, persons who meet one of the tests so far examined possess, directly or indirectly, at least 50% of each class of shares or other rights of beneficiaries in person. The "base erosion test" expected instead of a percentage less than 50% of the gross income earned by the person during the tax period is, directly or indirectly paid to (or gained by) people who are not resident in a Contracting State, form of payments deductible for income tax purposes in the State of residence of such person shall not be considered for the purposes of the "base erosion test," the payments attributable to permanent establishments of the person in another State.Under paragraph 3 of article. 2, where a resident of a Contracting State has not fulfilled any of the tests required by paragraph 2, applies the so-called "Active trade or business test", in relation to certain items of income portraits the other Contracting State. By virtue of the test in question, a resident of a Contracting State (which would not otherwise entitled to the benefits of conventional) may benefit from the provisions related to individual categories of income, if they occur (cumulatively) with the following conditions: the resident actually runs a trade or business in your country of residence; the income is "related or secondary" with respect to the commercial or industrial activity; the trade or business is substantial in relation to the activities exercised in the State from which the income. The application of '"active trade or business test" is also subject to the following conditions: the trade or business carried out by the subject in his home state ("active trade or business conduct") must not include the asset or investment management, unless that activity is not of a banking, insurance or financial managed by a bank, an insurance company or a stockbroker; the SO-CALLED "Substantiality" is determined taking into account all the circumstances, there is a so called "Safe harbor" rule in cases where the value of assets, gross income and the wage bill for the work performed in the State of residence to match a certain percentage of the value of these indicators related to production of income in the other; it is assumed that the individual income is connected with the trade or business if the business in the State from which that income is an area of ​​activity that forms a part of (or is complementary to) such trade or business; the income is considered "secondary" in relation to a trade or business if its function is to facilitate the management of the asset in the other State.Paragraph 4 of Art. 2 of the Protocol provides a procedure for granting discretionary benefits of conventional. Under this procedure, a resident of a Contracting State, which does not meet the requirements of any of the tests required by clause Lobc, may still be entitled to the benefits of the Convention if the competent authority of the State (which must grant these benefits ) recognizes the applicability of discretion. The rule was introduced in order to allow (also) to those who do not qualify for the overcoming of any of the tests required by clause Lobc to take advantage of the benefits of the Convention. The outcome of the procedure is dependent on the discretion of the competent authorities, which can recognize the applicability of all or part of the benefits of conventional and may also set a time limit on ability to take advantage of these benefits.

7. The correlative adjustments, the mutual agreement procedure and arbitration: Articles 9 and 25
With regard to the profits of associated enterprises under Article. 9, paragraph 2, the new Convention reproduces, with some significant changes, the principle of correlative adjustment already provided for by art. 1, paragraph 7 of the Protocol to the Convention of 1985. The principle of correlative adjustment provides that where a Contracting State imposes a charge to tax (as a result of a reassessment "at arm's length" transfer prices charged between associated enterprises) profits that are already subject to tax in the State, the latter must make a corresponding adjustment of tax charged on the same useful. According to the Commentary on Art. 9 of the OECD Model, the adjustment need not be made by a Contracting State, for the simple fact that the other State has made an adjustment to increase the profit of the company subject to taxation therein, it must be made only if (also) the first state recognizes that the amount subject to adjustment reflects the price that would actually have been agreed between independent enterprises. On this point, paragraph 2 of art. 9 of the new Convention states that, to determine the adjustments in question, the Contracting States should take into account other provisions of the Convention and, in any case, follow the provisions of art. 25 in terms of mutual agreement procedure. The OECD Model, Art. 25, provides that you may use the mutual agreement procedure in case of such measures, which lead (or lead) in taxation not in accordance with the provisions of the Convention, because if it becomes necessary to resolve by mutual agreement any difficulties or doubts concerning the interpretation or application of the Convention, or in order to eliminate double taxation in cases not covered by the Convention. The importance of the mutual agreement procedure, with reference to the adjustments made as a result of transfer pricing adjustment, is also underlined by the Commentary article. 25 of the OECD Model, however, identifies several application problems. First, the Commentary notes that the tax authorities should be notified as soon as the taxpayer's intention to make adjustments to the taxable profits on the basis of provisions on transfer pricing, in accordance with the provisions of art. 26 of the OECD Model in terms of information exchange. The mutual agreement procedure has also another important application problem, related to the fact that the authorities of the Contracting States have no obligation to reach a decision, it is only required to "seek" a good outcome to the solution of the problem. The new Convention, in order to solve the above mentioned problems at least in part, provides for recourse to arbitration. Paragraph 5 of article. 25, in particular, provides for the possibility, in cases where the competent authorities fail to reach an agreement by the mutual agreement procedure, refer the matter to arbitration, upon agreement of the competent authorities and the taxpayer, provided that this 'last written undertaking to comply with the decisions of the arbitration. The opinion of the Arbitration Board is binding on the taxpayer and for both states, limited to the matter under consideration. Recourse to arbitration is subject to prior attempt to resolve the dispute through mutual agreement procedure, for which there is no deadline, and the prior agreement of the competent authority and the taxpayer. An arbitration procedure is also provided for and regulated by art. 25 of the 2008 version of the OECD Model. The new paragraph 5 provides that, if the competent authorities are unable to reach an agreement under paragraph 2 within two years after submission of the case to the competent authority, the issue must be resolved by recourse the arbitration proceedings. Any outstanding issues amicably can not be subject to arbitration if a decision on them has already been issued by a judicial or administrative body of one of the two Contracting States. Unless the person directly concerned by the case does not accept the mutual agreement that implements the arbitration decision, that decision will be binding on both Contracting States and will be implemented regardless of the time limits in the domestic law of those States. Unlike the arbitration procedure provided by the new Convention in comment, that provided by the OECD Model (as of 2008) sets aside any prior authorization by the competent authorities in the presence of the procedural requirements of time, every issue is not resolved, which prevents an agreement between the competent authorities, should be submitted to arbitration. Moreover, while Article. 25, paragraph 5, of the OECD Model the use of arbitration is permissible when the competent authorities are unable to reach an amicable settlement within two years after submission of the case to the competent authority, paragraph 5 of art. 25 of the new Convention in question does not provide any temporal requirement.

8. The introduction of IRAP: Articles. 2 and 23
Another new feature of the new Convention is the ability for companies of the Contracting States to benefit from the provisions of agreements with IRAP. Articles. 2 and 23 tackle the issue of IRAP deductions against tax due in the U.S. This question is related, firstly, the qualification of IRAP in the notion of "direct taxes" for the application of conventions against double taxation, on the other hand, the discrepancy of the criteria for determining the tax base IRAP compared to the same criteria apply to direct taxes in the United States. In Italy, IRAP is contained in the article 44 of Legislative Decree, December 15, 1997, No 446, which provides that "for the application of international treaties on taxation, the regional tax on productive activities is equivalent to state taxes abolished". However, this rule does not affect the qualification of IRAP as "income tax" according to the rules of the U.S. tax, which apply regardless of the Italian rules. It was therefore necessary to provide for the inclusion of IRAP within the scope of the new Convention, namely to introduce the so-called "Accreditabilità" IRAP through specific provisions of the covenantal nature. The Art. 2, paragraph 2, letter b) of the Convention includes new IRAP on the list of taxes to which the Convention applies itself. The new Convention is intended, in particular, to eliminate the distorting effects that could have been derived from the non deductability of interest expense and labor costs from the gross tax base, which represents a significant difference in the manner of determining the tax base for IRAP purposes than ordinary direct tax, whose tax base is made up from net income. In order to neutralize the distortions, the new Convention provides only for the share accreditabilità IRAP tax (which would be due if there was no such non-deductible) determined by the coefficient art. 25, paragraph 2, letter b). This coefficient is determined by indicating: the numerator, the adjusted tax base (equal to the tax base, less the actual cost of labor and non-deductible interest expense); the denominator, the tax base on which the tax does apply. 
Table 1 - Formulae for calculating the deductible tax
X = coefficient significant IRAP
IRAP applicable due to gross 
The "coefficient applicable" is calculated as follows:
adjusted tax baseCoefficient applicable = overall tax base 
The adjusted tax base is equal to the following positive difference:
adjusted tax base=overall tax base-Interest expense and personnel costs deductible
Assuming that this difference is negative, the taxpayer is not entitled to any tax credit. 

Il fisco, 35 / 2010, p. 5678 Piergiorgio Valente 
References: Law 3 March 2009 n. 20

Do you know what "S.C.I.A." means?

PAGAMENTO RICHIESTO AL CONTRIBUENTE PRIMA CHE UN GIUDICE DECIDA SULLA FONDATEZZA DELL'ATTO DI ACCERTAMENTO EMESSO DALL'1 OTTOBRE 2011

1. Un terzo delle maggiori imposte accertate e degli interessi entro il termine per la proposizione del ricorso alla controparte.
2. Termine per l'affidamento all'agente della riscossione: 31° giorno successivo a quando il pagamento doveva essere effettuato.
3. L'affidamento comporta un aggravio delle somme dovute in misura pari al 9%.
4. La legge prevede il blocco dell'esecuzione forzata per 180 giorni.
5. Presentando l'istanza di sospensione dell'atto al giudice tributario, la Commissione ha sei mesi di tempo per accoglierla.
6. In caso di accoglimento, l'esecuzione dell'atto è sospesa sino alla sentenza di primo grado.

CREDITO D'IMPOSTA PER INVESTIMENTI NEL MEZZOGIORNO

ASPETTANDO IL DECRETO MINISTERIALE...




Alle imprese che nei periodi d’imposta dal 2007 al 2013 acquistano beni strumentali nuovi da destinare alle strutture produttive situate nelle aree sottoutilizzate del Mezzogiorno d’Italia è riconosciuto un credito d’imposta rapportato ai costi sostenuti.

DECRETO-LEGGE 13 maggio 2011, n. 70

Semestre Europeo - Prime disposizioni urgenti per l'economia. (11G0113) (GU n.110 del 13-5-2011 )

note: Entrata in vigore del provvedimento: 14/05/2011.
Decreto-Legge convertito con modificazioni dalla L. 12 luglio 2011, n. 106 (in G.U. 12/7/2011, n. 160).

                             Art. 2-bis 
 
     (((Credito d'imposta per gli investimenti nel Mezzogiorno) 
 
  1. In coerenza con la decisione assunta nel  "Patto  Europlus"  del
24-25 marzo 2011 e con il Piano per il Sud  approvato  dal  Consiglio
dei Ministri il 26 novembre 2010,  che  si  prefigge  in  particolare
l'obiettivo di concentrare nello strumento del credito d'imposta  gli
interventi rivolti ad aiutare le imprese a  superare  le  strozzature
alla loro crescita, il credito d'imposta per gli  investimenti  nelle
aree sottoutilizzate, di cui all'articolo 1,  commi  da  271  a  279,
della legge 27 dicembre 2006, n. 296, e successive modificazioni,  e'
rifinanziato con fondi strutturali europei. 
  2. Il Ministro dell'economia e delle finanze, di  concerto  con  il
Ministro per i rapporti con le regioni e per la coesione territoriale
e previa intesa in sede di Conferenza permanente per i  rapporti  tra
lo Stato, le regioni e le province autonome di Trento e  di  Bolzano,
stabilisce, con proprio decreto di natura non regolamentare, i limiti
di  finanziamento  per  ciascuna  regione  interessata,   la   durata
dell'agevolazione nonche' le disposizioni di attuazione necessarie  a
garantire la coerenza dello strumento con le priorita' e le procedure
dei fondi strutturali europei, in  particolare  quelle  previste  dal
regolamento (CE) n. 1083/2006 del Consiglio, dell'11 luglio  2006,  e
con la  cornice  programmatica  definita  con  il  Quadro  strategico
nazionale 2007-2013. I crediti d'imposta possono essere fruiti  entro
i limiti delle disponibilita' previste dal decreto di cui al presente
comma. I soggetti interessati hanno diritto al credito d'imposta fino
all'esaurimento delle risorse finanziarie. L'Agenzia  delle  entrate,
con proprio provvedimento, individua le  modalita'  per  l'attuazione
della presente clausola. 
  3. Tenuto conto dei notevoli ritardi nel loro impegno e nella  loro
spesa, le risorse necessarie  all'attuazione  del  presente  articolo
sono  individuate,

previo  consenso   della   Commissione   europea,
nell'utilizzo congiunto delle risorse del Fondo europeo  di  sviluppo
regionale  (FESR)  e  del  cofinanziamento  nazionale  destinate   ai
territori delle  regioni  Abruzzo,  Basilicata,  Calabria,  Campania,
Molise, Puglia, Sicilia e Sardegna. 
  4. Le citate risorse nazionali e dell'Unione europea, per  ciascuno
degli anni in cui il credito  d'imposta  e'  reso  operativo  con  il
decreto di cui al comma 2,  sono  versate  all'entrata  del  bilancio
dello Stato e successivamente riassegnate, per le suddette  finalita'
di spesa,  ad  apposito  programma  dello  stato  di  previsione  del
Ministero  dell'economia  e  delle   finanze.   A   tale   fine,   le
amministrazioni titolari dei relativi programmi comunicano  al  Fondo
di rotazione di cui all'articolo 5 della legge  16  aprile  1987,  n.
183, gli importi, dell'Unione europea  e  nazionali,  riconosciuti  a
titolo  di  credito  d'imposta  dall'Unione   europea,   da   versare
all'entrata del bilancio dello  Stato.  Ai  sensi  dell'articolo  17,
comma  12,  della  legge  31  dicembre  2009,  n.  196,  il  Ministro
dell'economia e delle finanze provvede al monitoraggio degli oneri di
cui al presente articolo. 
  5. Entro il 31 gennaio di ciascun anno il Ministro dell'economia  e
delle finanze riferisce alle Camere, con  apposita  relazione,  sullo
stato di attuazione del presente articolo)). 

Modifica alla normativa sulla privacy in vigore dal 14 maggio 2011

3-bis.⁽¹⁾ Il trattamento dei dati personali relativi a persone giuridiche, imprese, enti o associazioni effettuato nell'ambito di rapporti intercorrenti esclusivamente tra i medesimi soggetti per le finalità amministrativo - contabili, come definite all'articolo 34, comma 1-ter, non è soggetto all'applicazione del presente codice.

(1) Comma aggiunto dall'art. 6, comma 2, lettera a), numero 1), del decreto legge 13 maggio 2011, n. 70, convertito, con modificazioni, dalla legge 12 luglio 2011, n. 106.

Il Codice della privacy continua, quindi, ad applicarsi nei casi in cui:
- il titolare del trattamento o l’interessato è una persona fisica, non impresa;
- il trattamento, anche se viene fatto nell’ambito di rapporti B2B, persegue finalità diverse da quelle amministrativo-contabili (come nel caso di trattamenti che possono presentare particolari rischi per la privacy, come ad esempio il marketing diretto, i sondaggi e le ricerche di mercato).