Italy: The "Dormant" Companies’ New Discipline Under The Mid-August Measure (Law Decree No. 138 Dated 13.8.2011 Converted In The Law No. 148 Dated 14.9.2011.

Last Updated: 30 November 2011
Article by Batini Colombo Saottinis' Tax Team

1. INTRODUCTION

The Law Decree no. 138 dated 13.8.2011 (so called "Mid-August measure"), effective from 13.8.2011, has been converted into the Law n. 148 dated 14.9.2011 effective from 17.9.2011.

The "Mid-August measure" has modified the discipline of the so called "dormant" companies introducing from 2012:

  • the increasing to 38% of the corporate income tax (IRES) rate for companies that can be considered "dormant";
  • the extension of this discipline to companies that have fiscal losses (included in their tax returns) for 3 consecutive years.

2. TAX CONSEQUENCES FOR "DORMANT" COMPANIES

We deem useful to recall with absolute synthesis the application's assumptions of the dormant companies' discipline (article 30 of the Law 724/94) before examining the modifications introduced by the converted Law Decree no. 138/2011.

Companies are considered as "dormant" when their ordinary revenues and inventories' increasing included in the P&L are lower than the ones deriving from the application of the following coefficients to some assets included in the Balance Sheet:

  • 2%, for shares or other participating instruments and financial credits;
  • 6%, for real estate assets (reduced to 5% for office buildings or 4% fro buildings purchased during the same year of application);
  • 15%, for all other tangible and intangible fixed assets.

For both terms the comparison has to be done considering the average value of the last 3 years.

If, in example, a company owns, as unique asset, an office building valued € 500.000,00, assumed minimum revenues are € 25.000,00 (or the 5% of € 500.000,00).

If actual revenues will be, in example, € 18.000,00 the company is considered a "dormant" company (given that any of the foreseen exemption will not be applicable and the company is not intended to claim the inapplicability of the discipline through the submission of a specific written claim form).

Consequences for being considered a "dormant" company are:

  • A minimum corporate income's charge;
  • A minimum taxable income for Regional Tax (IRAP);
  • Limitations to the off-set or refund's request for any VAT credit accrued.

In particular the minimum income level is calculated applying to the same assets mentioned above the following percentages:

  • 1,5%, for shares or other participating instruments and financial credits;
  • 4,75%, to real estate assets (reduced to 4% for office buildings, to 3% to buildings purchased during the last year);
  • 12%, to all other tangible and intangible fixed assets.

In the above mentioned example the minimum income level will be equal to € 20.000,00 (or the 4% of € 500.000,00).

3. INCOME TAX RATE AT 38%

For companies "dormant" companies under article 30 of the Law 724/94, the new Law Decree no. 138/2011 has provided that the income tax rate (IRES) suffers an increase of 10,5 points.

Considering that the ordinary rate is set at 27,5%, the increased rate for dormant company will be 38%.

Unlimited Liability Companies (Personal Companies)

The increase will not affect ULC.

3.1 OBJECTIVE AREA

More in detail, the new rate is applicable to:

  • Share Capital Companies;
  • Share Capital Companies applying the "income transparency" principle under article 5 of the Italian General Tax Law (T.U.I.R.), on incomes deriving from dormant ULC (in this case the increase is applied on incomes attributed for transparency;
  • Share Capital Companies opting for fiscal consolidation (group income tax return), that will the increase to their single taxable income and will pay the additional income tax;
  • Share Capital Companies opting for fiscal consolidation having incomes coming from dormant ULC (in this case the increasing is applied on income deriving from income transparency );
  • Share Capital Companies opting for income transparency (if they are participated companies they will increase their own income, if they are shareholders they will increase their own income without considering the income deriving from participated companies)

3.2 NUMERIC EXAMPLE

Considering the above mentioned example if the involved company is a Share Capital Company (a Limited):

  • Before the Law Decree 138/2011 it would have to pay a corporate income tax of € 5.500,00 (27,5% of € 20.000,00);
  • Now it has to pay a corporate income tax of € 7.600,00 (38% of € 20.000,00)

If, on the contrary, the involved company is a ULC, the minimum income is transferred to shareholders without any increase: they will pay their own income taxes according their proper tax rate.

4. Extension of the discipline to companies with financial losses

4.1 SUBJECTIVE AREA

According to modification introduced by the Law decree no 138/2011, are considered "dormant companies" those companies that:

  • Submit to the Tax Authority income tax returns with fiscal losses for 3 consecutive years;
  • For the same 3 years have 2 years with fiscal losses and for the remaining one have declared a corporate income lower than the minimum one.

In both cases those companies are considered "dormant companies" starting from the fourth year subsequent to the above mentioned period of 3 years.

Exemptions stated by the old discipline on dormant companies still remain valid and effective.

Inclusion of Unlimited Liability Companies (Personal Companies)

We'd like to underline how, differently from the modification of the tax rate, the dormant companies new discipline is applied also the ULC.

4.2 NUMERIC EXAMPLE

Considering again the example mentioned above (company owning an office building included in the fixed assets for the value of € 500.000,00 and assuming:

  • Actual revenues equal to € 30.000,00;
  • Fiscal losses equal to € 5.000,00 (due to € 35.000,00 of deductible costs).

On the base of these assumptions:

  • Before the enforcement of the Law Decree no. 138/2011, the company would not be considered a dormant company (since actual revenues are higher than the required minimum level of € 25.000,00);
  • Now if the company has fiscal losses for 3 consecutive years, it will be considered a dormant company (starting from the following 4th year).

Therefore starting from the above mentioned 4th year, the same company:

Is obliged to pay income taxes on the minimum amount of € 20.000,00 (4% of € 500.000,00), being the same a Share Capital or an Unlimited Liability Company.

If it is a Share Capital Company it obliged to pay taxes on the same minimum taxable income at 38% rate.

5. EFFECTIVE DATE

Bothe the above analysed measures become effective starting from fiscal year following the one in progress per September 17th 2011.

Therefore for companies having their fiscal year coincident with calendar year (January 1st – December 31st ) the new rules will be mandatory staring from 2012 (the tax balance due for 2011 will be paid without the application of the new rules).

In example, considering a company with fiscal losses accumulated for 3 years, the first involved period will be 2012 if the company had losses in 2009, 2010 and 2011.

6 IMPLICATIONS ON INCOME TAX PRE-PAYMENTS

With relation to the two above mentioned new rules they have to be applied also to the calculation of those income tax prepayments due for 2012, or the year following the one in progress per September 17th 2011.

In this case the income tax to be considered is the one relating the previous year (2011) as if the new rules were already applicable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Batini Colombo Saottinis' Tax Team
 
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