Please find here below a summary of the provisions of the decree “Destinazione Italia” recently converted into Law.
These are significant amendments in the Italian legislation in order to attract investments in the Italian territory.
“Destinazione Italia” – Significant amendments in the Italian legislation in order to attract investments in the Italian territory.
Law-decree no. 145/2013 named “Destinazione Italia” was published on December 23, 2013 with the aim to open the Italian market to globalization, “bringing the world to Italy” by attracting capital, both financial and human, to create value, jobs, knowledge and growth.
The Italian Parliament has now converted the legislative decree into Law no. 9 dated 21 February 2014 (hereinafter the “Law”). The most relevant provisions of the Law, which are now definitive and in full force and effect, are summarized herein below for your convenience, together with some other recent laws and decrees which we deem may be of interest in your activities or prospective investments in Italy.
This document is sent for information purposes only and shall not be regarded or relied on as legal advice. Specific legal advice on any of the matters described herein shall be sought before any action is taken or omitted.
1. Special jurisdiction for foreign companies. A special jurisdiction for foreign companies (even having a branch in Italy) has been introduced; as a consequence these foreign companies can sue the counterparts (or be sued by them) only in 11 special Court sections specialized in corporation matters set in accordance with the Italian jurisdiction rules. In general terms, these special Court sections will be competent for IP, agreements and concerned matters, abuse of dominant positions, concentrations; violation of EU competition law, corporate claims, including but not limited to claims concerning incorporation and winding up of companies, amendment of by-laws, shareholders, lawsuits; shareholders’ agreements, transfer of shares, and furthermore public procurements at an EU level.
2. International Tax Ruling. Non-resident taxpayers (entrepreneurs or companies) carrying on an international business in Italy can apply for an international tax ruling (APA) also to define in advance, if the business carried on in Italy will be able to give rise to a permanent establishment in the Italian territory (in the past the International Tax Ruling procedure was limited to transfer pricing issues and dividend, interest and royalties matters and the procedure was longer). The duration of the agreement entered into by and between the nonresident taxpayer and the Italian Revenue Agency is extended to 5 (five) years.
3. Corporate tax credit. The law provides for a corporate tax credit equal to 50% of the increased amount of the expenses borne by the corporation in a financial year (if compared to those borne in the precedent financial year) within the overall amount of Euro 600 mln. each year (up to 2016). The expenses to be borne in order to reach the tax credit are those for employees operating in research and development activities; quotas of depreciation of expenses for purchase or use of equipment or instruments; costs of research programs carried out at or jointly with universities and research institutions; contractual costs for the purchase or the license of patents or technical know-how. Each company - regardless of its type, size, business or accounting system and irrespective of how it is formed or incorporated - having an annual turnover below Euro 500 mln. can obtain up to a Euro 2.5 mln. tax credit, provided that at least Euro 50,000 are borne for research and development expenses as detailed in the Law.
4. New statements can be issued by Italian Chambers of Commerce and also in the English language. Italian Chambers of Commerce shall now issue any requested certification in the English language; these certifications, if used abroad, are exempt from the application of the stamp duty. Furthermore, the Italian Chambers of Commerce will now be able to issue statements assessing the free sale and commerce in the Italian and EU territory, and certificates concerning signatory powers on deeds and statements to be used outside Italy.
5. Simplified visa procedures for investors, students, etc. The evaluation of the visas and residency permit applications related to innovative start-up companies, investment initiatives, research or patronage also in partnership with entities, research institutes and other public or private Italian natural or legal persons will be facilitated. By way of example these will apply to extra EU scientific researchers or highly skilled workers (researchers do not have to show the availability of a lodging in Italy adequate for family re-union purposes); highly skilled workers can obtain a visa and residency permit in Italy, irrespective of the annual immigration quotas (which by the way are abolished for students resident abroad having access to Italian university education).
6. Amendments to the Italian securitization law. These measures are aimed at improving the liquidity of the Italian lending system by introducing new financing channels which are alternative to the traditional banking system. They follow and supplement the introduction of the so-called mini-bonds, the market of which is expected to increase also as a consequence of the possibility to repackage such debt instruments through securitization transactions. These provisions should enhance the market appeal of securitization transactions. In general terms: (a) the Italian securitization law now also covers transactions carried out by means of underwriting or purchase, by securitization vehicles, of bonds and similar securities or promissory notes issued by companies (including, inter alia, the so-called mini-bonds); (b) ring-fence of SPV’s funds credited on the SPV’s bank accounts opened with the depositary bank or the servicer; (c) in case of trade receivables assigned in the framework of securitization transactions, portfolio requirements and enforceability requirements have been simplified and law provisions on factoring can be applied; (d) the claw-back provisions on advance payments made 2 years before bankruptcy do not apply to payments made to the SPV; (e) the formalities for the enforceability of assignment of receivables towards public entities have been simplified; (f) enforceability requirements in case of assignment of receivables arising from opening of credit line, also through bank accounts, have effect also in respect of future receivables arising from existing contracts; (g) in securitizations carried out by way of assignment to an investment fund of receivables, the fund manager can now act as servicer.
7. Substitute tax. The so-called imposta sostitutiva tax regime (which, in case of medium-long term bank loans, may entail payment of 0.25% on drawn-down amount, in lieu of registration and mortgage taxes and other taxes) became optional, and the choice of such tax regime must now be expressly stated in the facility agreement. This regime is now applicable (upon express choice) also to security interests connected to financing transactions structured as bond issuance, to the transfer of the security interests also consequent to the transfer of such bonds, and to the modifications or cancellation of such transactions.
8. Security interest on corporate bonds. Securities issued by companies, placed with and circulated only amongst qualified investors, can now be secured by means of the special privilege set out under the Italian banking law.
9. Set-off of tax bills for companies who own certified receivables vis-à-vis public entities. Companies who own receivables vis-à-vis public entities arising from supply or public procurement agreements, due and payable and certified, can set-off their tax bills (cartelle esattoriali) with such receivables in 2014. The procedure for such set-off must be determined by enacting provisions, which shall be issued within 90 days of the entry into force of the Law.
10. Provisions to reduce the cost of electricity and granting a 7year extension to the remaining period of incentives. These provisions introduce the option for Renewable Energy producers to either continue under their current incentive scheme for the relevant remaining period, thus renouncing to any kind of supporting scheme for a 10-year period following the end of the incentive period; or apply for a 7-year extension of the incentive scheme by accepting a reduction of the overall incentive, to be determined on the basis of the remaining period, the type of renewable source and the type of incentive. By these measures the government foresees a substantial reduction of the electricity bill equal to 850 million Euros.
11. Making energy less costly and the access to public tender for gas distribution more competitive. The Law introduced new provisions in order to strengthen the competition between gas distribution companies with the aim to facilitate the participation of new companies to the future public tenders for gas distribution.
12. Dismissal of public real estate assets. The company “Società di Gestione del Risparmio” (IMCO) owned by the Ministry of Economy and Finance will manage and/or divest real estate transferred to it by central or local governments. Other properties will be transferred straight to private entities according to different procedures. In this respect, among others, the Ministry of Defense has recently decided to dismiss 700 premises (e.g. barracks, bunkers, mountain dew, plots of land storages, often located in in the centre of the cities). The investor submitting the best enhancement plan will be granted a free-of-charge concession lasting for 10 years. At the end of this period, the real estate will be for sale and the concession title holder will have a pre-emption right to purchase the site.
13. Measures to support the infrastructure sector.
a) Expo 2015: With the aim to allocate funds for Expo 2015, the Law diverted some grants for an overall value of roughly Euro 140 million. The funds will be allocated for the accomplishment of: (i) on a priority basis, the final designs concerning the connection works deemed needful for the achievement of Expo 2015, including the road link called Zara-Expo S.S. 11 – S.S. 233 (lot 1. B), and the Cascina Merlata remote parking; (ii) the civil works for the accomplishment of the railway from Terminals T1 and T2 to the Malpensa Airport; (iii) the Line M4 of the Milan subway (provided that the facility agreement is entered into by December 31st 2014). The supervision and control over the enforcement of the works has been given to the Sole Commissionaire for Expo 2015 together with the Institutional Table (i.e. an institution for the management of the regional and extra regional works, chaired by the chairman of the Lombardia Region), however the Sole Commissionaire is in charge to adopt exceptional measures for the prompt start of the civil works and/or for timely accomplishment of the works.
b) Funding of the Italian harbors: starting from year 2014, inter alia, roughly Euro 23 million will be allocated for infrastructural works with the aim to increase the competitiveness of the Italian harbors. The purpose of this provision is also to make the railway transport within the port system more efficient.
c) Air transport sector: The companies managing the airports which are wishing to disburse grants and/or subsidies to the airlines with the aim to promote the demand in their catchment area, must use transparent selection procedures for the identification of the beneficiary of the same grants. Specific guide lines will be issued by the Ministry of the Infrastructure and Transports. In order to promote attractiveness of the Italian air transport sector, a threshold has been introduced for the tax on sound emissions of airplanes.
d) Municipality of Naples Line 1 Underground: The Municipality of Naples has been authorized to borrow mortgages in order to meet the financial needs required to accomplish the Line 1 of the Naples underground.
e) Funding of Cultural and Environmental Heritage: In view of Expo 2015 and in order to promote tourist accommodation and enhance the land areas and the cultural and environmental heritage, smaller municipalities (those up to 150,000 inhabitants) can apply for funding of projects (one per municipality or group of municipalities). The funding cannot be less than Eur. 1 mln. and/or exceed Eur. 5 mln. The intervention must be completed within twenty months after 30 June 2014. Extraordinary maintenance with the same purpose can be also financed.
14. Reduced taxes on real estate transactions. Starting from January 1, 2014, the tax regime regarding the real estate transactions has been modified. The taxation has now been reduced and is applicable, as follows:
a) If the transfer occurs between VAT taxpayers: VAT: is due at 22% rate; Cadastral tax: is due at 1% rate; Mortgage tax: is due at 3% rate; Registration tax: € 200,00;
b) If the transfer occurs between non VAT taxpayers: Cadastral tax: € 50,00; Mortgage tax: € 50,00; Registration tax: 9%
The above rules are also applicable both in case of sale of going concern and contribution in kind within which there are real estates, except for contribution in kind of instrumental immovable (not modifiable, without substantial transformations), to which a 4% tax rate applies.