This article describes the basic features of the regulatory and tax regimes applicable to real estate funds under Italian law1. It is updated as at May 20, 2005.
Real estate funds are regulated by provisions contained in several statutes and regulations issued by the Bank of Italy, the Ministry for Economic Affairs (Ministro dell’Economia e delle Finanze) and CONSOB (Commissione Nazionale per le Società e la Borsa, the Italian authority for financial markets).
The regime of Italian real estate funds is complex and this article’s exclusive purpose is only to provide a general overview of the matter. The first part of this article analyses the regulatory treatment of the funds. The second part focuses on the tax rules2.
An investment fund is a pool of assets, represented by units pertaining to a plurality of investors, and managed on their behalf and in their interest by a special-purpose company (SGR), namely a "savings managing company" (the managing company).
Investment funds and Managing Companies are deemed to be separate "entities" and special rules have been laid down for their establishment, activity and management, aimed at ensuring such separation and avoiding the carrying out by the Management Company of transactions with interests in conflict with the investment fund. For these reasons, as a general rule, the assets of the funds cannot be held directly by the Managing Company. They must be deposited with an authorized bank (the depository bank), which carries out each transaction upon instructions by the Managing Company and guarantees compliance of such instructions with the applicable rules. As the Managing Company, also the Depositary Bank must act independently and in the interest of the investors in the fund.
Generally speaking, funds can be of an "open-end" or a "closed-end" type. The main difference is that the open-end funds operate on the principle of risk-spreading and their units can be issued and redeemed at any time by the investors, whereas the investment strategies of the closed-end funds are subject to looser investment limits and their units can be issued and redeemed only at the end of specified periods.
Italian real estate funds can be established only in the form of closed-end funds. Consequently, this memorandum will only refer to rules applicable to closed-end funds.
ESTABLISHMENT OF THE FUND
Companies authorized in EU countries other than Italy may not institute or manage real estate funds. A Managing Company is a joint-stock company with registered office and head office in Italy which can carry out the activity of management of investment funds upon authorization by the Bank of Italy. The authorization is released when, on the basis of all the information available and/or filed, the Bank of Italy reaches the conclusion that a "sound and prudent management" of the fund is guaranteed. As a rule this applies if:
- the existing capital of the Managing Company is at least Euro 1 million (often the Bank of Italy requires it to be higher in relation to the kind of offered investment and connected risk;
- the persons who carry out management, administration or supervising activity of the Managing Company comply with the requirements of professional experience and reliability set out by the Ministry for Economic Affairs;
- the shareholders fulfil the requirements of reliability set out by the Ministry for Economic Affairs;
- the structure of the group to which the Managing Company belongs, with reference, in particular, to the geographic dislocation and suitability of the other entities belonging to the group, is not prejudicial to the effective supervision of the Managing Company by the Bank of Italy or CONSOB, as the case may be; and
- on the basis of its general business plan and description of the organizational and technical structure, it is clear that the Managing Company will be able to operate efficiently.
Along with carrying out the activity of management of investment funds, the Managing Company may solely (i) carry out management activity of individual investment portfolios, (ii) set up and manage pension funds and (iii) perform certain related and instrumental activities.
Managing Companies may offer the fund units in other EU Member States in compliance with the relevant provisions set out by the Bank of Italy, and in extra-EU States, upon authorization by the Bank of Italy. In both cases, the offer is also subject to the applicable laws and regulatory provisions of the relevant State.
With the exception of "speculative funds" a Managing Company may establish and manage more than one fund either established by the same Managing Company or by another Managing Company.
The term of each fund must be consistent with the nature of its investment activity and cannot exceed the term of the Managing Company. The maximum term for an Italian real estate fund is 30 years.
Each fund is a separate pool of assets. It is therefore distinguished from the assets of the Managing Company, of the investors and of the other funds managed by the same Managing Company. Only the fund’s creditors are entitled to exercise their claims upon the fund assets. The creditors of the investors can attach only the fund units held by the investors.
The Managing Company drafts the regolamento of each fund, which contains the rules for the functioning of the same fund (the Regulation). The Regulation must be approved by the Bank of Italy before the offer of the fund units to investors. The Regulation governs the participation of investors in the fund, the mutual rights and obligations of the Managing Company, the Depositary Bank and the fund’s investors, the subscription and redemption of the funds units, the Managing Company’s officers responsible for the selection of investments and the investments criteria, the types of securities and other assets in which the fund’s assets may be invested, the distribution of earnings, the procedures for the fund’s winding up and all other relevant matters.
The Depository Bank must be an Italian bank (or an Italian branch of an EU bank) which must comply with certain regulatory requirements, namely professional experience of the managers, adequate experience for such activity, minimum assets and a structure that guarantees an efficient and effective management of the business. The Bank of Italy monitors compliance with such criteria.
The Depository Bank and the Managing Company can be part of the same group; nevertheless, they must act independently, and the same individuals cannot act as significant directors and managers in both legal entities. The Depositary Bank keeps the custody of the fund’s assets, supervises the Managing Company management activities and its compliance with the applicable laws and regulations.
The type of investors to whom the fund’s units may be offered is set out in the Regulation. As a rule, units may be made available to the public, whether through a listing or not, or to specific categories of investors only. In this respect, two options are particularly noteworthy:
- it is possible to create "reserved funds"—accessible only to qualified investors3—for which investment restrictions are looser than the general ones and
- it is possible to create "speculative funds"—accessible only to a maximum of 200 investors—the minimum unit must be worth more than Euro 500,000. These funds may operate virtually without limitations.
Moreover, closed-end funds may be established in the form of "secured funds". This type of fund guarantees to investors the repayment of the capital invested or, alternatively, a minimum return. For these purposes, the Managing Company must enter into agreements, setting up the offered guarantee, with banks, securities brokerage companies, insurance companies or financial intermediaries enrolled in the special register kept by the Bank of Italy, or purchase certain types of securities as indicated by the Bank of Italy.
The units can be issued either at the time of the formation of the fund or afterwards. In the latter case, the Regulation sets out the rules applicable to such further issue of units.
Although investors, generally, subscribe for units of the fund in cash, the subscription through contribution of real estate assets, real estate rights or interests in real estate companies is also permitted.
The Regulation may provide also for exclusive or partial contributions of public assets (Public funds). At least 51% of the assets of Public Funds must originate from public entities. Public Funds are subject to special rules.
The law allows investors to subscribe for units of a real estate fund through contribution in kind with regard to real estate funds other than Public Funds (ordinary funds). The subscription for the units of Ordinary Funds may be made, either in whole or in part, by contribution in kind provided that the fund has obtained:
- the appraisal of an independent expert no more than 30 days before the signing of the deed of contribution. The appraised value cannot be lower than the value of the units issued. This rule does not apply to assets traded on a regulated market and
- the evaluation of a financial intermediary assessing the consistency and profitability of the assets contributed as compared to the management policy with regard to solicitation of public savings made by the fund. The intermediary can be the same expert who made the appraisal, provided that it has the required professional standards.
The fees due to the independent experts for the assets appraisal are entirely borne by the Ordinary Fund.
Units of Ordinary Funds may be made available to both private and public investors.
Additional requirements are provided in case of a contribution made by the shareholders of the Managing Company and by the companies of its group (see 1.5 below).
As a partial exception to the principle that investors may not interfere in the management activity of the fund, a meeting is held between the investors to resolve upon certain matters to be indicated by the Ministry for Economic Affairs. In any case, the investors’ meeting must resolve upon (i) the replacement of the Managing Company; (ii) the listing on the Stock Exchange of the units of the fund and (iii) the changes to the management policy of the fund.
The investors’ meeting is called by the Board of Directors of the Managing Company or upon request of as many investors as representing at least 10% of the value of the units in circulation, and resolutions are passed if approved by at least 51% of the units represented at the meeting. Under no circumstances may the quorum be lower than 30% of the value of all the units in circulation. Finally, the resolution of the investors’ meeting must be also approved by the Bank of Italy. For this purpose, the resolution is deemed to be approved if the Bank of Italy does not expressly deny the approval within 4 months from the date of the receipt of the resolution.
The law provides that if the minimum unit is worth less than Euro 25,000, an application for the listing on the Stock Exchange must be filed within 24 months after the closing of the initial offer. This is to guarantee to small investors the possibility to liquidate their investment in the fund.
The assets pooled in a real estate fund can be invested in:
- financial instruments listed on a regulated market;
- unlisted financial instruments;
- bank deposits;
- real estate assets, real estate rights and interests in real estate companies;
- receivables and securities embedding receivables and
- any other asset that is traded and that has a value determinable at least on a semi-annual basis.
Public Funds or Ordinary Funds must invest at least two thirds of their equity in real estate assets, real estate rights and interests in real estate companies4. This threshold can be reduced to 51% if at least 20% of the equity is invested in securities issued in real estate securitization transactions and real estate rights or accounts receivable secured by mortgage. These investment thresholds must be reached within 24 moths from the beginning of the fund’s activity.
Furthermore, assets of a real estate fund must be invested pursuant to the directives set forth in the Regulation, which have been previously approved by the Bank of Italy.
The regulations issued by the Bank of Italy in respect to real estate funds are very detailed and it is out of the scope of this memorandum to describe them in detail. The main rules are the following:
- it is possible to rent the real estate assets giving a call option in favor of the tenant;
- it is possible to hold cash for "treasury purposes" without limitations;
- it is not possible to engage directly in building activities;
- it is not possible to invest more than one third of the equity in the same real estate asset;
- it is not possible to invest more than 10% of the equity in the shares issued by the same building company;
- it is possible to enter into loan agreements as borrower up to 60% of the value of the real estate assets, real estate rights and interests in real estate companies owned by the fund and up to 20% of the value of other assets owned by the fund. The borrowed amounts can be used to increase the value of the assets owned by the fund (including the change of purpose of the assets). Moreover, real estate funds can borrow money up to 10% of the value of the fund (however, within the limit indicated before) to redeem the units issued to investors;
- it is not possible to enter into loan agreements as lender, except when this is connected to the purchase or holding of securities;
- it is possible for the Managing Company, within the activity of management of real estate funds, to enter into loan agreements as borrower up to 30% of the value of the held real estate assets, only in the form of loans secured by mortgage, for the purpose of the acquisition or restructuring of real estate assets and acquisition of interests in unlisted real estate companies. Moreover, the Managing Company can enter into loan agreements as borrower up to 10% of the net value of the fund, and for a duration not exceeding 6 months, for the payment of ordinary costs pertaining to the real estate fund.
As a rule, a "closed-end fund" cannot invest in assets sold or contributed, directly or indirectly by a shareholder, director, auditor or executive officer of the Managing Company, as well as by a company belonging to its group, nor can a "closed end" fund sell assets to such entities. Moreover, the fund cannot invest more than 3% of its value in securities issued in a securitization transaction of receivables belonging to the Managing Company or to a company of its group. There are obviously exceptions to such rules, but the regulations are too detailed for the purposes of this article.
However, in case of Ordinary Funds, shareholders of the Managing Company and of companies of its group can sell and contribute assets to the fund or purchase assets from the same provided that:
- the value of each asset does not exceed 10% of the value of the fund. The overall value of the transactions made, also indirectly, with the shareholders of the Managing Company cannot exceed 40% of the value of the fund. The overall value of the transactions made, also indirectly, with the shareholders of the Managing Company and with the members of its group cannot exceed 60% of the value of the fund;
- after the first issuance of the units of the fund, the value of each asset and, in any case, the overall value of the transactions made, also indirectly, with the shareholders of the Managing Company and with the members of its group cannot exceed 10% of the value of the fund each year;
- the assets must be subject to an appraisal made by an independent expert, as described in Section 1.3 above, even when they are sold or purchased by the fund;
- the units subscribed as a consequence of the contribution of assets must be held by the contributing person for an amount not lower than 30% of the value of the units subscribed and for at least two years from the date of contribution. The Regulation sets out rules to ensure compliance with such obligation by the contributing person;
- the financial intermediary which must asses the consistency and profitability of the assets contributed, as described in Section 1.3 above, cannot be a member of the group of the contributing person; and
- a resolution of the board of directors of the Managing Company must describe the interest of the fund and of the investors in entering into the transaction. The internal auditing board must give a favorable opinion on it.
In case of "reserved funds" and "speculative funds" the rules described in letters a), b) and c) do not apply. Similarly, letters a) and b) do not apply if the units of the fund have a value equal to, or higher than, € 250,000. The above indicated limitations do not apply to Public Funds.
Real estate funds are subject to special tax rules. The main set of rules was introduced in 2001. Amendments were subsequently introduced effective as of January 1, 20045.
The reform introduced in 2001 was primarily aimed at granting a more favorable tax regime to real estate funds established through contributions of real estate assets owned by the State, Regions, Local Authorities, Social Security Bodies and consortia or companies wholly owned by such entities. In addition, the reform applies to other real estate funds, whether listed or not.
Taxation of the Fund
Real estate funds are not subject to corporate income tax (IRES) and local tax on value of production (IRAP). As from January 1, 2004, real estate funds are tax exempt.
No withholding tax is levied on income from capital derived by the fund (e.g., interest on loans or bonds or bank accounts, dividends, etc.). In particular, no withholding tax is levied on
(i) interest or any other income from loans; (ii) interest or any other income from bonds or similar securities issued by listed companies, banks or formerly State owned Companies transformed into corporations; (iii) interest or any other income on Government bonds or similar securities; (iv) interest or any other income from bonds issued and listed abroad; (v) interest from bank accounts; (vi) income derived from currency repos (riporto) or from secured securities lending; (vii) proceeds from the securities issued by special purpose vehicles involved in securitization transactions; (viii) dividends or (ix) income derived from the participation in non resident funds marketed in Italy.
All the above listed items of income as well as any capital gains realized by the fund are not taxed in the hands of the fund. Exceptions to the rule are interest and income derived from commercial papers (cambiali finanziarie), atypical securities and bonds issued by non-listed companies. These items of income are subject to final withholding taxes at the rate of 12.5% or 27% depending on the characteristics and the duration of the underlying loan/bond.
Taxation Of The Investors
The Managing Company must levy a 12.5% withholding tax on income paid to the investors and, in case of reimbursement of the units, on the amount paid to the investors which exceeds the subscription or purchase price paid by the same investors. The withholding tax is levied on the share of proceeds pertaining to each unit on the basis of the periodical reports which the Managing Company must publish pursuant to the regulations of the Bank of Italy. The 12.5% withholding tax is paid on account of the income tax of the recipient if this is (i) an individual entrepreneur, with respect to units held as a business asset; (ii) an Italian resident partnership; (iii) an Italian resident company or (iv) a nonresident with a permanent establishment in Italy.
The 12.5% withholding tax is final in all other cases (e.g., the recipient is an individual or entity resident in Italy that does not carry out a business activity, an IRES tax exempt entity, etc.). However, the 12.5% withholding tax does not apply if the recipient is (i) an Italian investment fund subject to tax in Italy; (ii) an Italian pension fund or (iii) a non Italian resident which is resident in a State with which Italy has an effective exchange of information.
Capital gains on the transfer of the units of a real estate fund are included in the overall income of the investor and are subject to personal income tax (IRPEF) and IRES, depending on whether the investor is an individual entrepreneur and a company resident in Italy or a nonresident with a permanent establishment in Italy. In all other cases, a 12.5% capital gain tax applies. However, capital gains on the transfer of the units of a real estate fund are tax exempt in Italy if they are realized by nonresidents without a permanent establishment in Italy, provided that (a) the units are listed on a regulated market or (b) if the units are not listed on a regulated market, the nonresident is resident in a State that allows an effective exchange of information with Italy.
As mentioned in Section 1.3 above, the subscription for the units of a real estate fund also through contribution of real estate assets is permitted. As a rule, for income tax purposes the provisions relating to transfers for consideration (i.e., sales) are also applicable to contributions in kind. Therefore, contributions in kind may give rise to capital gains if the tax value of the assets is lower than the value determined (i) on the basis of the last monthly average price of the units, if these are listed on a regulated market or (ii) in proportion to the whole amount of the contribution in kind, if the units are not listed.
Capital gains of the investors that contributed assets to real estate funds would be subject to the ordinary IRES (or, as far as individuals are concerned, IRPEF) taxation. In particular, as far as resident companies are concerned, the gains realized on the contribution would be, generally, subject to 33% IRES in the year in which they are realized. As an alternative to the full IRES taxation, the capital gain may be subject, upon election of the contributing company, to 33% IRES in equal installments over a period of up to five years provided that the assets were owned by the contributing company for at least three financial years prior to the contribution.
Taxation Of The Managing Company
The Managing Company must be an Italian S.p.A., and is therefore subject to IRES and IRAP. Consequently, the managing fees paid to the Managing Company are included in the overall income of the Managing Company and subject to the ordinary IRES rate (currently 33%). IRAP is currently levied at the rate of 4.25% but it is the Government’s intention to gradually phase it out in the next few years also in view of the issues that have arisen as to its compatibility with EC law.
Formation Of Real Estate Funds
The deeds of formation of a real estate fund as well as the capital subscription and the fund’s certificates issuance are not subject to registration tax. The transfers of State-owned real estate assets to real estate funds are subject to a lump-sum tax of Euro 1,549.37. This is levied instead of the registration tax (the rate of which is 4, 7, 8 or 15%, as the case may be) and the cadastral taxes (3%).
A municipal tax on real estate (ICI) is levied on real estate assets located in Italy. ICI is currently levied at a rate ranging between 0.4% and 0.7% depending on the municipality where the assets are located. The tax is applied on the deemed return of the property (based on rendita catastale).
Dealing In Shares And Securities
All types of contracts regarding shares, quotas and interests in companies are subject to a stamp duty tax (fissato bollato). The rates of the fissato bollato vary according to the object of the contract (for transfer of participation concluded with the intervention of qualified intermediary, such as banks, the rate is 0.05%).
Certain transactions are exempt from the fissato bollato such as, for example, contracts regarding listed securities not entered into on a regulated market provided that they are entered into between (i) Italian or foreign intermediaries; (ii) Italian intermediaries and non residents or (iii) Intermediaries (also foreign) and funds or open-end investment companies (SICAV).
Purchase And Sale Of Assets
In general, a 20% VAT is levied on the sale of real estate assets. However, exceptions are provided for, depending on the type of real estate assets and on the individual circumstances of the seller (see Annex 1).
Furthermore, all contracts concerning real estate assets located in Italy are subject to registration tax. The registration tax is levied at different rates, depending on the type of real estate assets transferred. The registration tax is alternative to VAT, i.e., transfers of real estate assets subject to VAT are not subject to registration tax (see Annex 1).
Cadastral taxes (imposte ipotecarie e catastali) are also levied on the transfers of Italian real estate assets. They are currently taxed at the aggregate rate of 3% (applied on the value of the transfer) but for transactions which are also subject to VAT.
Contribution Of Assets
The rules on the sale of real estate apply also to contributions. The contribution of portfolios of leased assets to a real estate fund are considered as contributions of a business (as a going concern) and are VAT exempt and subject to nominal registration and cadastral taxes.
VAT Regime Of Real Estate Funds
The VAT taxpayer for the activities carried out by the real estate fund (sale of goods and supply of services) is the Managing Company. The Managing Company must therefore calculate VAT in compliance with applicable VAT law (obviously, separately from its own VAT position). The Managing Company can, however, offset its own VAT against the fund’s VAT (and the other way round).
There are three different ways to utilize the possible VAT credits of the real estate fund:
Application for refund by the Managing Company. As an exception to the general rule, no security must be provided. The Managing Company must apply for the refund in the period comprised between 1 February and 30 June of each year and the Tax Authorities must grant the refund within six months of the date of application.
Set-off of VAT credits against other taxes or contributions due by the real estate fund without any limit (as an exception to the general limit of Euro 516,456.90 per year).
Assignment by the Managing Company to third parties of the VAT credits resulting from the annual VAT tax return under the general rules currently in force.
VAT, registration tax and cadastral taxes regimes applicable to the most relevant investments and activities carried out by real estate funds
(i) Purchase by the fund of the real estate assets from a VAT person (individual entrepreneur and companies)
1. The regulatory framework applicable to real estate funds is contained mainly in Legislative Decree 24 February 1998 no. 58 (Law 58/98), as subsequently amended, inter alia, by Law Decree 25 September 2001 no. 351 (Decree 351/01) and Law Decree 30 September 2003 no. 269, as subsequently amended by Decree 24 December 2003 no. 350 (Decree 269/03), which lays down some general provisions whose implementation is delegated to specific regulations to be issued by the Treasury, Bank of Italy and CONSOB.
The Treasury issued Decree 24 May 1999 no. 228 (as subsequently amended, Decree 228/99), which implements Law 58/98 and sets out the general guidelines applicable to investment funds. No amendments of Decree 228/99, however, have yet been issued by Treasury so as to implement the discipline introduced by Decree 269/03.
Bank of Italy issued many provvedimenti so as to implement Law 58/98 and Decree 228/99, the most relevant of which is Provvedimento dated 14 April 2005, which entered into force on 13 May 2005.
2. The tax rules applicable to real estate funds are mainly contained in Decree 351/01. This has only partially modified the regulatory framework but has heavily amended the tax rules applicable to the real estate funds. This set of rules have been further amended by Decree 269/03 effective on 1 January 2004.
3. For these purposes, qualified investor are: investment firms, banks, stockbrokers, savings management companies, open-end investment companies (SICAVs), pension funds, insurance companies, holding companies of banking groups and companies enrolled in the registers provided by Articles 106, 107 and 113 of Legislative Decree 1 September 1993 no. 385, foreign persons who, pursuant to the law in force in their home country, carry on the same activities carried on by the foregoing persons, banking foundations and individuals and entities who document their possession of the specific expertise and experience in matters of transactions in financial instruments expressly declared in writing by their legal representative.
4. Such companies may be joint stock companies which carry out activity of building, valorization, disposal and management (either asset, property and/or facility management) of real estate assets.
5. There is the possibility for real estate funds created before 2001 to choose the application of a different income tax regime. In such an event, the Managing Company would levy a 25% tax on the income of the fund.
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.