Taxable port state property areas in order to ICI/IMU
PKF Studio TCL comments the latest sentence which reproposes the taxation of the port state property areas which are essential to the dealer in concessionary to carry out own business activity
Legislative Decree n° 504/1992 in art 7 comma 1, introducing a facilitation opportunity, provided for the relief from ICI application or properties classified or classifiable in cadastral category E (Particular properties for public use). In absence of specific dispositions and explanation, a contingency had been determined related to the taxation of the harbour areas.
The following legislative action, which was carried out by Law n° 388/2000 amended Article 3 of the above-mentioned legislative decree (504/1992) by extending ICI’s passive subjectivity to the state property concession.
In addition art. 2 of the Ministry of Finance’s decree n° 28 of 1998, considers real estate units, and therefore subject to ICI, even the portions of the building or the areas which, in the current state in which they are located and based on the use that is made of them, submit a possibility of functional autonomy and income.
It follows those commercial establishments, buildings with autonomous accommodation functions even if they are part of a station or airport must be considered separately from the structure which they belong, they can no longer be considered as infrastructure of the airport or station for the purposes of their submission to ICI, because they have functional autonomy compared to the structure which they belong.
Therefore in case of real estate units belonging to port areas, if these are intended for commercial use or private office and have a functional autonomy than the harbour areas which they belong, they cannot be classified for cadastral purposes in the cadastral categories E/l, E/2, E/3, E/4, E/5, E/6 and E/9 and therefore cannot be considered free from ICI, even more from IMU and TASI.
After long years of litigation with opposite decision that involved trade associations and the best professional firms, the Supreme Court stepped in as set out above, by judgment n° 7390 of 2018, reaffirming that the combined disposition of the articles. 5 of R.D.L. 652 of 1939 and 40 of D.P.R. 1142 of 1949, also areas or buildings which are in themselves profit or capable of producing an own income are subject to municipal taxation.
The same address is resumed by the Supreme Court the recent order 10287 of 2019, in support of the City of Genoa, in which it is reiterated that in order to the liability to the ICI , and consequently to IMU and TASI, the areas concerned are not considered free even the discovered harbour areas, with functional autonomy about income, which are used by the concessionary of the state property for the carrying out of his business, as they are not classifiable in the cadastral category E.
The legislator, with the Law of Stability for the year 2018 places end to all doubts in support the concessionary enterprises of state property areas establishing that some specific types of real estate situated in the ports of national economic importance and international of competence of the Authority of Harbour System and are not subject to IMU with effect from 1 January 2020.
PKF Studio TCL – Genova-Milano
The new convention Italy – China against Double Taxation
A new convention against double taxation between Italy and the Chinese Popular Republic was signed on 23 March 2019. The Convention will come into force 30 days after ratification and will apply to income earned from 1 January of the year following that of entry into force.
The new agreement will have the primary purpose of avoiding the double taxation of income between Italy and China, without however creating situations of abuse aimed at obtaining a failure to tax income produced. In this regard the art. 4 in paragraph 3 provides that in case of double residence of the taxable person both in Italy and in China, the relevant authority will try to determine the place of effective residence , the place of incorporation or registration and any other relevant factor and, only if they cannot reach an agreement on the actual residence of the person in Italy rather than in China ,he shall not be entitled to the tax reductions or exemptions agreed in the Convention.
Interesting to point out how the Convention introduces rules of advantage for Italian companies that receive dividends from Chinese sources. Article 10 of the Convention introduced a reduction in the rate of withholding tax on dividends from 10 % (as was the case in the previous agreement of 1986) to 5 % in the event that dividends derive from a participation, held for at least 365 days, and which allocates at least 25% of the capital of the foreign company.
We retain to analyze in more detail other terms of the agreement in subsequent contributions.
PKF Studio TCL – Genova-Milano