Diapositiva 1 - STEP BeNeLux

The New Reporting
obligations of the Italian
Beneficiaries of foreign
Trusts and Italy’s Voluntary
Disclosure Programme
STEP BENELUX
14th May 2014
LUIGI BELLUZZO
TEP
[email protected]
Belluzzo&Partners
1. Exchange of Information
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BACKGROUND
According to official estimates, assets worth at least EUR 200 billion are currently
held abroad and not declared in Italy by resident taxpayers. The market decline in
bank secrecy and the strengthening of exchange of information between States
have exposed such individuals to the real risk of discovery and subsequent
administrative and criminal action.
It is likely that Italy will introduce the new criminal offence of ‘self-laundering’
in the near future. A draft law has already been circulated and the Law Decree n.
4/2014 actually introduced the Italian Voluntary Disclosure procedure
(“collaborazione volontaria”), but has not been converted into Law by the Italian
Parliament. Nowadays two drafts Laws are pending for discussion.
Italian Authorities are acting powerfully to bring Italian business on the right (tax)
track and delivered a combinated approach, following the Laws.
Among these the new rules for the Foreign Assets Reporting (RW or Monitoraggio
Fiscale) accurately introduce peculiarity which eventualy let the taxpayer or the
ultimate beneficiary to disclose his or her foreign assets.
May 2014
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Italian Voluntary Disclosure
BREACHES
In almost all cases those Italian private taxpayers (and similar entities, according
to article 4(1), of the Law Decree N.167/90) holding undeclared capital abroad
have breached regulations as follows:
• failure to make tax returns and the payment of taxes in Italy on income giving
rise to financial assets and income from these assets;
• failure to comply with tax monitoring regulations pursuant to Legislative
Decree No 167/1990 and amendments;
• probable commission of criminal offences pursuant to Legislative Decree No
74/2000.
May 2013
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2. Foreign Assets Tax Reporting (RW)
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INTERNATIONAL REPORTING
Recent amendments to the tax monitoring regulations under European
Decree No 97/2013 have rendered voluntary disclosure more attractive,
since the applicable sanctions have been notably reduced.
Sanctions for failure to submit tax returns or for filing of incomplete
returns (for direct taxation, and VAT where applicable) are much more
lenient under this law, given the voluntary nature of the procedure.
According to experience there is an high degree of attention to the
immediate future of the structures held by the taxpayer as the
Administration is asking for security about the future taxation of income
related to those assets.
Recently the reporting obligations rules (RW) following Law n°97/2013
have been commented by the Tax Autorities (Circular 38/E of December
23rd,2013).
More information is avaiable on our web site (FOCUS B&P Magazine).
May 2014
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ADMINISTRATIVE SANCTIONS
for failure to report assets held abroad (RW)
Article 9 of Italian Law N. 97/2013 (so-called “Legge Europea”) modified the fiscal
monitoring and reporting legislation, by introducing much more lenient sanctions
for failure to submit the RW Form with the indication investments and financial
assets held abroad, as follows:
• from 3% to 15% for assets held in countries on the white list;
• from 6% to 30% for assets held in countries on the black list (DM 4TH May 1999
and 21st November 2001);
• application of sanction for failure to complete Section II of the RW Form only;
• confiscation of equivalent value does not apply anymore.
May 2014
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RIFORMA QUADRO RW
Following an assesment to restore a breach from the Italian Gov’t of the EU rule, we finally had a
reformed Law Decree n. 167/90 about the obligation to report about foreign assets for an iIalian
resident taxpayer.
Artile 9 of Europea Law n.97/2013 modified the Law Decree n.167/1990 about the so called
«moniotraggio fiscale». The new rules:
• simplify and reduce burder for compilance for Italian residents about foreign assets and/or
financial activity abroad;
• extend obligations for the filing of Model RW to ultimate beneficiary too. They have to
report for the various cases disciplined by the so called III Directive.
• extend reporting also below the 10.000 Euro threshold, with the only exception of bank
accounts and deposit.
• There is not any more the relevant picture at year end, but it is sufficient to have assets
one day only.
New rules starts to be effective from January 1st 2013!!!
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RIFORMA QUADRO RW
Obligations for International Reporting:
a)
Individuals resident in Tax Italy;
b)
Non commercial entities resident in Tax Italy;
c)
Non commercial companies (società semplici) tax
resident in Italy
And other similar taxpayers
Direct or Indirect
Ownership
OR
Ultimate Beneficiary
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RIFORMA QUADRO RW
L’ambito soggettivo
Ultimate Beneficiary
Taxpayer is obliged to verify il only for one moment/Day in the relevant year he or she or it
is the beneficiary owner
Company
Other Entities: Trust, Wrappers, Foundations, etc
la persona fisica (o le persone fisiche) che possiede
o che controlla società attraverso il controllo
diretto o indiretto di una percentuale pari al
25%+1 di partecipazione al capitale
la persona fisica (o le persone fisiche) beneficiaria di
non meno del 25% del patrimonio, nel caso in cui i
futuri beneficiari siano stati già determinati
La categoria di persone nel cui interesse principale
agisce ed è istituita l’entità giuridica, nel caso in cui
i beneficiari non siano stati individuati
la persona fisica (o le persone fisiche) che esercita il
controllo sulla società in modo diverso da quanto
sopra specificato.
La persona fisica (o le persone fisiche) che
esercitano un controllo su non meno del 25% del
patrimonio di un’entità giuridica
Very Important: we have to consider the whole family, according to art. 5 Tuir ( coniuge,
parenti entro il III grado, affini entro il II grado).
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3. Trust and RW
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RIFORMA QUADRO RW
L’obbligo dichiarativo
B) The LOOK THROUGH APPROACH and the ULTIMATE BENEFICIARY
Requisiti del controllo non verificati
• Non Commercial Trust (and similar structures) are obliged to monior directly
foreign assets and invesments sono tenuti a monitorare direttamente gli
investimenti o le attività estere (se si tratta di enti non commerciali residenti).
Requisiti del controllo verificati
• the Taxpayer is obliged to monitor through RW:
• the whole value of foreign investments through the trust;
• the percentage of the benefit
The look through is always activate for black listed structures, trust,
wrappers and foundations (and similar structures)
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RIFORMA QUADRO RW
L’obbligo dichiarativo
B) INDIRECT OWNERSHIP
Through a Trust
If we are before «not determined beneficiaries» the Trust must report (RW)
Through income trasparent resident Trusts
Obliged TaxPayer
Condition
Indicazione nel quadro RW
Trust
Beneficiaries are
NOT “ultimate
beneficiaries”
• The total asset values;
• The specific % which is without
«beneficiaries».
Beneficiario
Beneficiaries are
“ultimate
beneficiaries”
• The total asset values;
• the specific %
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RIFORMA QUADRO RW
L’obbligo dichiarativo
o Foreign Trusts with «determined (capital) beneficiaries» in Italy
Obliged TaxPayer
Beneficiary
Beneficiary
Condition
Indicazione nel quarto RW
The determined beneficiary
is redisdent and attributed • The total asset values;
with a relevant participation • the specific %
(25% or more) of trust assets
Beneficiary is not «ultimate
beneficiary»
• the attributable % of the trust
fund
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Q&A
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Dedicated Team @ Belluzzo&Partners
Here at Belluzzo&Partners we prepared a dedicated team highly skilled in cross
border tax matters and benefiting from the positioning of the firm in England and
in Italy.
We are recognized by top International directories among top Italian tax firms with
expertize on estate planning, trust, tax and inheritance issues.
We are also able to recruit colleagues with dedicated expertize to single issues
both on crime law and civil law issues.
We can therefore advice both trustees, banks and/or beneficiaries with a
particular attention to culture and language, with a technical approach and the
ability to manage the whole process from initial contact with UCIFI officers and tax
litigation procedures to the definition of the Italian Voluntary Disclosure and its
effects. With a particular focus to the (soft) landing in Italy for International
offshore structures previously planned. Further it is possible to find solutions
where structure became Italian under a tax structure, retaining its International
jurisdiction, giving comfort to International trustees and generally to clients.
Stradone San Fermo, 14
37121 Verona
T+39 045 8005353
F+39 045 8012788
[email protected]
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20123 Milano
T+39 02 3656 9657
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[email protected]
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WC2N 5NG London
T+44 20 70042660
F+44 20 70042661
[email protected]
www.belluzzo.net
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as an LLP. Further information, including details of equity partners, is available on our website or from
our offices.
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Professionisti Italiani nel Mondo, a non-profit consortium linking top Italian firms across the globe.
May 20014

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