This article is intended to help Walliance users understand their earnings taxation guidelines.

The reference is legislation in force on March 2020.

We recommend in any case contacting your accountant for detailed information on the applicability of these provisions to your specific tax situation.

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As regards the financial and income flows linked to equity crowdfunding methods, the ordinary tax regime envisaged by the TUIR [Italian Consolidated Law on Income Tax] regarding participation in the share capital is essentially applicable.

In particular, the investments proposed on Walliance can yield income for investors that, if distinguished by nature, can be classified as "capital" or "financial".

The taxation regime for such income depends on the nature of the beneficiary (investor).

Dividends received from investments proposed on Walliance are taxed under the following indications:

  • If the tax recipient is a natural person, the company in which you have invested in, at the time of payment, implements a flat-rate tax withholding of 26% on the entire amount of the income generated;
  • If the recipient is a legal person (company), at the time of collection, the dividends partially contribute to the taxable business income and this to a differentiated extent depending on whether the recipient qualifies as a limited company or partnership/individual entrepreneur.

The tax regime thus defined also varies according to the nationality of the recipient (Italian/European/foreign).

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Premise

Walliance is the first Italian Real Estate Crowdfunding platform through which an investor can decide to diversify their investments thanks to the reduction of typical entry barriers on real estate investments. Walliance allows the investor to access the real estate initiative by investing directly in the corporate entity that develops and manages the real estate transaction subject of the crowdfunding: the investor does not purchase any real estate property, but rather participates by buying shares/assets of the company managing the proposal. The investor becomes a passive partner or "financial backer" of the initiative. Walliance "helps" the Offeror to find part of the financial resources necessary for the development and the investor to seek qualified investment initiatives in the real estate sector. Based on these premises, the performance of the investment is directly connected to the performance of the company that manages the initiative with the consequent risks associated with investments.

Basically, the Walliance Portal acts as a showcase for the Offeror's project, which is presented to the network's audience of potential investors on the internet. The establishment of crowdfunding allows to unite contributions, even modest, of numerous small investors and to realize a significant collection of funds that can be used for the development of an entrepreneurial or investment project for which the Offer of financial instruments is conducted on the portal.

The Portal has the primary and exclusive function of facilitating the widespread collection of capital by the public parties who access it. In fact, the provisions set out by the CONSOB Regulations for the protection of investors establish what obligations and procedures are to be followed by interested parties(Investor/Offeror/Portal Operator), which are necessary for the correct completion of the investment in order to comply with the protections provided by the Law to the benefit of the collectivity of savers. 

Tax treatment of earned income

The taxable events derived from the investment proposed on Walliance are the following:

  1. Collection of dividends from distribution of profits/reserves;
  2. Collection of gains from realization/disinvestment of the investment in the offering company;
  3. Other events.

1. Collection of dividends from distribution of profits/reserves

As briefly reported in the introduction, the nature of the beneficiary and their nationality determines the tax regime applicable to the dividends received upon distribution of the profits/reserves by the company that manages the initiative subject to investment.

In general, dividends form part of the income of the recipient party on a cash basis, and therefore, are taxed in the financial year in which they are received.

1.1 Dividend received by a natural person residing in Italy 

On dividends paid to resident natural persons, a tax of 26% is withheld at the time of disbursement by the payor acting as withholding agent. 

Until 12/31/2017, such a regime was envisaged only for dividends from unqualified shareholdings[1]; since 1/1/2018, this regime also applies to dividends from qualified shareholdings, except for the application of the transitory regulation for profits produced up to the current financial year as of 12/31/2017, which distribution is approved from 1/1/2018 to 12/31/2022. In fact, in relation to this transitional period, continues to be applied the partial amount contributes to the taxable income (40% or 49.72% for profits earned until 12/31/2016, and 58.14% for profits earned between 01/01/2017 and 12/31/2017) pursuant to Italian Ministerial Decree of 05/26/2017.

1.2 Dividend received by a legal person subject to IRES residing in Italy (e.g. limited company) 

With regard to the dividends received by limited companies derived from investments in companies residing in Italy, such proceeds contribute to taxable income only to the extent of 5% of their amount, which is multiplied by the IRES rate currently in force (24%), which results in a tax rate equal to 1.2% of the dividend itself [2]. 

1.3 Dividends received by a party residing in Italy subject to IRPEF (e.g. partnerships or individual entrepreneurs) 

In this case, at the time of collection, the dividend partially contributes to taxable income and specifically as follows:

  • 58.14% of the amount if the profits were earned starting in the financial year following the one in progress as of 12/31/2016;
  • 49.72% of the amount if profits were earned starting from the financial year following the one in progress from 12/31/2007 and up to 12/31/2016;
  • 40% of the amount if the profits were earned up to the current financial year up to 12/31/2007. 

1.4 Dividends received by a non-resident subject (without a Permanent Establishment in Italy [3])

The payor acting as withholding agent applies a withholding tax of 26% on the entire dividend, pursuant to Art. 27, paragraph 3 Italian Presidential Decree 600/73.

However, non-resident subjects in Italy, can submit a refund request to the Pescara Operations Center, within the period of forfeiture up to 48 months from the date of collection of the tax. 

In fact, they have the right to a refund, up to the amount of 11/26 of the withholding tax they have proven to have definitively paid abroad on the same profits by certification of the competent tax office of the other foreign country. The request must contain a series of information, including:

  • The certificate of residence in the foreign country, for tax purposes, issued by the competent Tax Authority;
  • The declaration of existence or lack of a permanent establishment in Italy, to which is attributable to the income subject of the tax refund request;
  • The declaration of the existence of any other specific conditions provided for by the Convention accompanied by further documentation proving the actual levy of the tax.

As an alternative to the refund request, it is possible to apply an alternative procedure, which can be activated upon the specific request of the parties concerned, which consists of requesting the direct application of the conventional withholding tax, whenever existing and more favorable than ordinary taxation, to the Italian withholding company at the time the withholding tax is applied. As a rule, based on Art. 10 of the OECD Treaty, such conventional withholding tax is between 5% and 15%.

To facilitate both the disbursement of the refund and the application of the alternative procedure (direct request for the application of the reduced conventional rate), the Agenzia delle Entrate [Italian Revenue Agency] has prepared standard forms to be used by non-resident subjects, even if it is always possible to resort to the submission of plain paper applications containing the same tax statements.

Model A (standard form) is found within the AE Provision of July 10, 2013, available on the Agenzia delle Entrate [Italian Revenue Agency] website

1.5 Dividend received by European capital companies (based in the EU and without a Permanent Establishment in Italy)

With the 2007 Federal Budget, the internal taxation of dividends to companies (taxation on 5% of the same) was made comparable with that of dividends paid in favor of the following:

  • Companies or entities subject to corporate income tax in an EU member state;
  • Companies or entities belonging to the EEA included in the list of States that allow an adequate exchange of information ("White List").

Article 27 paragraph 3-ter of Italian Presidential Decree no. 600/73, in fact, provides for the application of a withholding tax of 1.20%, upon presentation to the payor, acting as withholding agent, of suitable certification of residence and tax status issued by the tax authorities of the country of membership.

Such withholding tax is applicable in all cases where the "Mother-daughter" Directive does not apply to the total exemption regime, which is limited to cases of direct shareholding of not less than 10% of the capital of the payor company continuously for at least one year.

2. Collection of gains from realization/disinvestment of the investment in the offering company

In relation to the above-stated tax situation, the nature and nationality of the investor also determines the applicable tax regime.

With regard, in fact, to the investor, the sale of equity investments for consideration creates either a "capital gain" (for non-entrepreneurial entities) or "capital gains/losses" (in the case of equity investments held under a business regime).

Beyond the different tax configuration of income, in general, the tax basis in this case arises, in most cases, upon the transfer of ownership of the equity investment. However, such capital gain becomes taxable when the consideration for this action is received.

The details with reference to the specific tax treatment are shown below.

2.1 Realization/disposal of investments held by resident subjects

Since 1/1/2019 [4], capital gains derived from the sale of investments by non-entrepreneurial residents, both in the case of qualified and unqualified investments, are subject to the substitute tax of 26%.

The taxable event is also linked in this case to a cash basis criterion. In the event that the agreed consideration is deferred or received in installments, the capital gain must be determined proportionally to the amounts collected within each tax period.

The value subject to taxation is calculated as the difference between the consideration received (price) and the cost or purchase value of the same, increased by any inherent charge, including inheritance and donation tax, with the exclusion of interest expense.

In the area of business income, on the other hand, the realization of equity investments can benefit from the participation exemption regime (the so-called pex regime). This regime provides for an exemption percentage equal to 95% of the capital gain from the realization of equity investments that meet the requirements of Art. 87, paragraph 1 of the TUIR [Italian Consolidate Law on Income Tax] [5] [6]. The capital gain is considered realized at the time of delivery of the securities or, if later, at the time when the transfer effect of the contractually established property occurs (no advance payments or installments are recognized).

2.1 Realization/disposal of investments held by resident subjects

For non-residents there are some internal regulations that provide exemptions from substitute tax in Italy. 

In particular, for the purposes that concern us herein, the capital gains from the realization of unqualified shareholdings held in unlisted companies are exempt for all subjects resident in the countries listed on the White list pursuant to Italian Ministerial Decree 09/04/1996 as amended and supplemented (Art. 5, paragraph 5 of the Italian Legislative Decree 461/97), that is, in the States and territories that allow an adequate exchange of information.

In case of residence in a country not on the White List, capital gains from non-qualified shareholdings are taxable according to internal regulations (26%), but in most cases, they are exempt under the double taxation Conventions.

In this case, it is a priority to carefully evaluate the provisions of the individual Conventions stipulated by Italy with the recipient's Country of residence as follows:

  1. If the Convention complies with Art. 13 of the OECD model, it is the foreign State to tax the capital gain exclusively, while in Italy no tax would be due (for example, a Swiss entity could utilize the Italy-Switzerland Convention and be recognized as exempt from tax also for capital gains on qualified equity investments);
  2. If the Convention deviates from Art. 13 OECD, concurrent taxation by the two States could be envisaged[7].

The specific double taxation Conventions must be assessed very carefully, particularly with reference to the case of investments proposed on Walliance, because the investments realized/disposed of are (almost) always directly or indirectly referable to investments held in real estate companies. Article 13, paragraph 4, of the OECD model, in fact, establishes that the capital gains earned by a resident of a Contracting State following the disposal of "shares" deriving for more than 50%, directly or indirectly, from real estate located in the other Contracting State, may be taxed in said other State. 

The regulation is inspired by reasons of fiscal caution, since it is aimed at preventing that the subject, rather than selling properties located in the foreign State (with concurrent taxation of capital gains in both States pursuant to Art.13, paragraph 1), places such properties in a company governed by foreign law and sells their shares, and pays tax only in the country of residence (of course, where allowable by the Convention).

A case-by-case assessment should therefore be carried out, after checking the dictates of the Conventions in use with Italy, if any.

It is possible to consult the current Conventions on the website of the Italian Department of Finance below:https://www.finanze.gov.it/opencms/it/fiscalita-comunitaria-e-internazionale/convenzioni-e-accordi/convenzioni-per-evitare-le-doppie-imposizioni/ .

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Notes

[1] The definition of qualified and unqualified equity investments is given by Art. 67 of the TUIR (Italian Consolidated Law on Income Taxes). The "qualification" is given by the possession of a percentage of equity investment in the capital or assets greater than 25% or a percentage of the exercisable voting rights in ordinary shareholder meetings of more than 20%, for unlisted companies; a percentage equity investment in the capital or assets of more than 5% or a percentage of the exercisable voting rights in the ordinary shareholder meeting of more than 2%, for companies whose securities are traded on regulated markets.
[2] For those who draw up the financial statements according to international accounting standards, there is a different tax regime according to the destination of the equity investment held. If it is a lasting investment, then it is comparable to companies that prepare financial statements according to national accounting standards (IRES on 5% amount); if it is for trading, it is taxable for the entire amount. [3] The presence of a Permanent Establishment (PE) in Italy assimilates the "fiscal" position of the non-resident subject to that of an Italian earner. In fact, if the equity investment is attributable to the PE, the dividend contributes to the formation of the total income in Italy (up to 5%), without the application of the withholding tax.
[4] News introduced by the 2018 Federal Budget Law. Gains on the sale of qualified and unqualified investments now belong to a single income category that can be offset by losses on the sale of qualified and unqualified investments. The changes made to Article 68 of the TUIR made it necessary to simultaneously extend the scope of application of the substitute tax on capital gains by intervening on Articles 5, 6 and 7 of Italian Legislative Decree 461/1997 also pertaining to the administered and managed regime.
[5] The requirements are as follows: uninterrupted possession of the equity investment from the first day of the twelfth month prior to that of the assignment (letter a); entry of the equity investment among financial fixed assets in the first financial statements ending during the period of ownership (letter b); tax residence of the investee company in States or territories other than those with preferential taxation (letter c); exercise by the investee company of a commercial enterprise (letter d). Letter d) determines the exclusion from the possibility of benefiting from the pex regime of companies whose assets mainly consist of investment properties.
[6] At the same time, capital losses on equity investments that meet the requirements for exemption are completely non-deductible.
[7] On the other hand, as regards the capital gains from the sale of qualified equity investments, they are taxable according to Italian (internal) legislation, but in most cases, they are exempt under the Conventions against double taxation.

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