Transfer Pricing 2022

Last Updated April 14, 2022

Italy

Law and Practice

Authors



Maisto e Associati was established in 1991 as an independent Italian tax law firm with offices in Milan, Rome and London. Over the years, the firm has grown consistently and now has 60 professionals, including 12 partners and two of counsel, with consolidated experience in managing complex domestic and multi-jurisdictional cases. It has a long tradition of transfer pricing, with a dedicated team that has a depth of expertise in assisting multinational groups with reference to all issues connected to transfer pricing. Maisto e Associati has an outstanding track record in the negotiation of unilateral and bilateral advance pricing agreements, requests for unilateral recognition of the downward adjustment of the income of a resident company following a transfer pricing adjustment carried out by the financial administration of another state, competent authorities procedures for the management of tax disputes concerning the adjustment of the profits of associated companies, and assistance on transfer pricing audits.

Transfer pricing is governed by Article 110(7) of Presidential Decree, 22 December 1986, No 917 (Consolidated Law on Income Taxes, also referred to as Income Tax Code or ITC), which provides that the prices for intercompany cross-border transactions have to be determined on the basis of the arm’s-length principle (ie, based on the conditions and prices that would have been agreed between independent parties acting on an arm’s-length basis and in comparable circumstances) to the extent that this gives rise to an increase in taxable income.

Special rules are provided for downward adjustments. Pursuant to Article 31-quater of Presidential Decree 22 December 1973, No 600 (Presidential Decree No 600/1973), and related implementing regulations issued by the Italian Revenue Agency (IRA) on 30 May 2018, a downward adjustment is allowed under the following circumstances:

  • as a result of the implementation of an agreement reached by competent authorities pursuant to a double tax treaty (DTT), to the Convention on the elimination of double taxation in connection with the adjustments of profits of associated enterprises resident in a member state of the European Union (90/436/EEC) and to Council Directive 2017/1852 of 10 October 2017 on tax dispute resolution mechanisms in the European Union;
  • as a result of a joint audit carried out as part of international administrative co-operation; and
  • upon request of the taxpayer, following a final upward adjustment, complying with the arm’s-length principle carried out by a state with which a DTT is in force and that allows an effective exchange of information.

General guidelines for the correct application of the arm’s-length principle set out by Article 110(7) ITC have been issued in the Decree of the Ministry of Economy and Finance, on 14 May 2018 (the Ministerial Decree), aligning the Italian regulations with current international best practices.

Following the 1971 tax reform, transfer pricing was regulated by a specific provision (Articles 53, last paragraph, letter (b) and 56(2) of Presidential Decree, 29 September 1973, No 597 (Decree No 597/1973)), separately for expenses and revenues.

The IRA issued comprehensive guidelines on transfer pricing for the first time in 1980 with Circular No 32/9/2267 of 22 September 1980 (1980 Circular). The 1980 Circular was largely based on the OECD report, “Transfer Pricing and Multinationals” of 1979, and has been, for a very long time, the sole source for interpreting the Italian transfer pricing rules.

At the end of 1980, the provisions contained in Articles 53 and 56 of Decree No 597/1973 were repealed and replaced by Article 75, last paragraph, of Presidential Decree, 30 December 1980, No 897. Further guidelines were issued by the IRA with Circular No 42 of 12 December 1981 (1981 Circular), dealing with the concept of control. Subsequently, Article 75 was transposed into Article 110(7) of the ITC, which provided that the price for intercompany cross-border transactions had to be determined on the basis of the “normal” value of goods and services, as defined by Article 9(3) of the ITC, which reads as follows:

“Normal value [...] means the price or consideration applied on average for goods or services of the same kind or similar, at arm’s-length conditions and at the same market level, at the time and place where goods and services are purchased or rendered or, in the absence of this, at the nearest time and place. For the determination of normal value, reference is made as far as possible to price lists or tariffs of the person rendering the goods or services or, in the absence of this, to official lists, considering usual discounts. [...]”.

Alignment with OECD Transfer Pricing Guidelines

In 2017, in order to better align the Italian transfer pricing regulations with international standards, Article 110(7) was amended by Law Decree, 24 April 2017, No 50 converted, with amendments, by Law No 96 of 21 June 2017: the reference to the “normal” value concept was replaced by the reference to the arm’s-length principle. Therefore, the new Article 110(7) ITC explicitly incorporates the arm’s-length principle set forth by both Article 9 of the OECD, Model Tax Convention on Income and on Capital, Condensed Version 2017, and the OECD, Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations of January 2022 (OECD Guidelines).

On 14 May 2018, a Ministerial Decree was published, setting out general guidance for the correct application of the arm’s-length principle in line with international best practices making explicit reference to the OECD Guidelines and to the OECD Final Report on BEPS Actions 8–10 as well.

Furthermore, pursuant to Article 8 of the Ministerial Decree, on 23 November 2020, the Director of the IRA issued Regulation ref. 2020/0360494 (2020 TP DOC Regulation), in replacement of the previous 2010 regulations, updating the transfer pricing documentation eligibility requirements to benefit from the penalty protection regime and aligning the same with the OECD Guidelines as amended following the OECD Final Report on BEPS Actions 13.

It is also worth noting that the Ministerial Decree contains a final clause under Article 9 that explicitly enables the IRA to issue further implementing measures, considering the OECD Guidelines as amended, from time to time.

Transfer pricing rules apply with respect to cross-border transactions carried out between an Italian resident enterprise and non-resident companies that are linked by a direct or indirect “control” relationship. Indeed, Article 110(7) of the ITC applies to cross-border transactions occurring between Italian and non-resident enterprises that: “directly or indirectly control the Italian enterprise, or are controlled by it, or are controlled by the same company controlling the Italian enterprise”. However, Article 110(7) of the ITC does not provide a definition of “control”.

The definition of “associated enterprises” is provided by Article 2, letter a), of the Ministerial Decree, as follows: “an enterprise resident in the Italian territory as well as non-resident companies where: (i) one of them participates directly or indirectly in the management, control or capital of the other, or (ii) the same person participates directly or indirectly in the management, control or capital of both enterprises.”

What Constitutes Control?

Article 2, letter b), of the Ministerial Decree clarifies that “participation in the management, control or capital” means (i) a participation of more than 50% in the capital, voting rights or profits of another enterprise; or (ii) the dominant influence over the management of another enterprise, based on equity or contractual bounds. In this respect, it should be noted that Article 110(7) of the ITC merely refers to the concept of “control”, which was already present in the wording of Article 110(7) before the amendments introduced by Law Decree of 24 April 2017, No 50. In this regard, the 1980 Circular had specified that the concept of “control” must be characterised as “all instances of potential or effective economic influence”. According to the 1980 Circular, the rationale of such interpretation lies in the fact that price differentials in commercial transactions often have their fundamental foothold in the power of one party to strongly influence the will of the other party, thus altering the terms of the transaction. Such power can be effective without its possessor necessarily being a majority shareholder.

On this point, the Ministerial Decree seems to follow the same approach of the 1980 Circular, confirming that the concept of “participation in the management, control or capital” includes a “dominant influence” on the management of another enterprise based on constraints other than mere capital control, even if it introduced a reference to contractual bounds. Also, the 1981 Circular reaffirmed that the concept of control is strictly related to the actual existence of a “dominant influence”. In the light of this, apart from voting rights, some other factors were identified, such as:

  • the exclusive sale of products manufactured by the other enterprise;
  • the use of the capital, products and technical co-operation of the other enterprise, including joint ventures;
  • the right of the other enterprise to appoint members of the board of directors of the enterprise;
  • the existence of members of the board of directors in common;
  • the existence of family relationships between the parties; and
  • in general, all the cases in which a potential or actual influence on business decisions is exercised.

Further guidance should be provided with reference to the notion of “dominant influence”.

The transfer pricing methods to be used for the evaluation of a controlled transaction on the basis of the arm’s-length principle are provided by Article 4(2) of the Ministerial Decree, in accordance with those listed in the OECD Guidelines: (i) the comparable uncontrolled price (CUP) method, (ii) the resale price method (RPM), (iii) the cost-plus method (CPM), (iv) the transactional net margin method (TNMM) and (v) the transactional profit split method (PSM).

It is worth mentioning that, based on the 1979 OECD Guidelines, the 1980 Circular had already referred to such methods for the evaluation of a controlled transaction. The practice of the IRA shows that the guidelines provided by the 1980 Circular on transfer pricing methods have been frequently considered together with the OECD developments in this regard (namely the OECD Guidelines as updated from time to time). It is also worth noting that the Italian Ministry of Finance has translated into Italian and published the OECD Guidelines, first in 2013 and then in 2017, implicitly endorsing their adoption.

Article 4(5) of the Ministerial Decree, following the OECD Guidelines, allows taxpayers to apply an unspecified method, other than the methods listed in Article 4(2) of the same Ministerial Decree, provided that they demonstrate that (i) none of the specified methods can be applied in a reliable manner, and (ii) the different method produces a result consistent with the one which independent enterprises would obtain in carrying out comparable uncontrolled transactions.

The “most appropriate method” rule for the selection of the method is explicitly adopted by Article 4(1) of the Ministerial Decree as provided by the OECD Guidelines. Accordingly, Article 4(1) states that the most appropriate method should be selected based on:

  • the strengths and weaknesses of each method depending on the circumstances of the case;
  • the appropriateness of the method considered in view of the economically relevant characteristics of the controlled transaction;
  • the availability of reliable information, in particular in relation to comparable uncontrolled transactions; and
  • the degree of comparability between the controlled transaction and the uncontrolled transaction.

Furthermore, in line with the OECD Guidelines, Article 4(3) also states that traditional methods (CUP, CPM or RPM) have to be preferred, where a traditional method and a transactional method (TNMM or PSM) can be applied in an equally reliable manner. Additionally, Article 4(3) provides that the CUP method is deemed to be preferable where it and any of the other above-mentioned methods can be applied in an equally reliable manner. Lastly, Article 4(4) specifies that it is not necessary to apply more than one method to assess the arm’s-length nature of a controlled transaction.

Article 6 of the Ministerial Decree deals with arm’s-length range; ie, the range of figures related to a number of uncontrolled transactions each of which is equally comparable to the controlled transaction. In accordance with the OECD Guidelines, it is expressly provided that a controlled transaction is deemed to be at arm’s length if the related financial indicator falls within the above-mentioned arm’s-length range.

Furthermore, it is worth mentioning that according to Article 6(3), if the financial indicator of a controlled transaction does not fall within the arm’s-length range, the IRA and the Guardia di Finanza (tax auditors) are allowed to make an adjustment in order to bring it within the range. However, neither the Ministerial Decree nor regulations/rulings issued by the IRA provide guidelines regarding which point of the range the tax auditors can take for that adjustment. As a matter of practice, tax auditors tend to adjust to the median when the financial indicator of a controlled transaction does not fall within the interquartile range.

Lastly, in accordance with the OECD Guidelines, Article 6(3) states that, in the case of a transfer pricing adjustment by the tax auditors, the taxpayer has the right to demonstrate that the controlled transaction complies with the arm’s-length principle. In this case, the tax auditors can disregard the taxpayer's arguments, providing adequate explanation.

According to Article 3 of the Ministerial Decree, in the case of differences in comparability that affect a financial indicator, comparability adjustments can be made if it is possible to reduce such differences in a reliable manner.

Italian laws do not provide for notable rules specifically relating to the transfer pricing of intangibles. The arm’s-length principle applies.

Italian laws do not provide for any special transfer pricing rules regarding hard-to-value intangibles. The arm’s-length principle and the OECD guidance on hard-to-value intangibles apply.

Cost sharing/cost contribution arrangements are generally recognised in Italy (reference to them is expressly made in the 1980 Circular), even if no special transfer pricing rules apply to such arrangements. The arm’s-length principle applies.

Italian laws provide that a taxpayer is allowed to make an affirmative transfer pricing adjustment after the filing of a tax return, and before a tax audit starts, by submitting an amended tax return and paying the higher taxes resulting from the upward adjustment, related interest and reduced penalties through the ravvedimento operoso (active repentance) programme.

In the event that a taxpayer adopts the penalty protection regime (for further details see 8.2 Taxpayer Obligations under the OECD Transfer Pricing Guidelines), that taxpayer is allowed to make an upward adjustment as per the above, also amending the transfer pricing documentation.

The Italian exchange of information framework is characterised by a wide and complex landscape of instruments available to the tax auditors, through which they can share information with, or gather information from, other jurisdictions. Very briefly, regarding transfer pricing matters, exchange of information can be based on DTTs, tax information exchange agreements (TIEA), and EU Directives executed/implemented by Italy.

DTTs

Italy has a wide treaty network, largely based on the OECD Model Tax Convention on Income and Capital of 1969, generally compliant with Article 26 of the OECD Model Convention. As a general rule, under DTTs, contracting states are obliged to exchange not only necessary information, but also pieces of information that can be “foreseeably relevant”, with the only limitations being those applicable to generalised requests for information, of a banking or financial nature, and not concerning specific taxpayers (so-called fishing expeditions). The exchange of information can occur upon request, automatically or spontaneously.

TIEAs

Furthermore, Italy has concluded several TIEAs with states other than those with whom it has a DTT in force. Based on such agreements, exchange of information can occur only upon request; the pieces of information to be exchanged are those foreseeably relevant for the assessment and collection of taxes.

EU Directives

As to EU Directives, Italy has implemented, inter alia, the following.

  • Directive 2015/2376/EU (DAC3), which provides for the automatic exchange of tax rulings and advance pricing agreements (APAs); however, bilateral or multilateral APAs concluded with third countries are excluded if the agreement reached does not allow its disclosure. These agreements may be subject to spontaneous exchange, if allowed and where the competent authority of the third country authorises the disclosure.
  • Directive 2016/881/EU (DAC4), which provides for the automatic exchange of reporting documents of multinational companies (ie, country-by country reporting).
  • Directive 2018/822/EU (DAC6), which provides for the automatic exchange of information regarding cross-border aggressive tax planning mandatorily communicated by Italian intermediaries (such as, lawyers, tax accountants, notaries, financial institutions and the like) or taxpayers.

In Italy there is an advance pricing agreement (APA) programme allowing taxpayers with international activities, inter alia, to determine in advance with the IRA the methods and criteria used to set their transfer pricing policies. Specifically, Italian taxpayers falling within the provision laid down by Article 110 (7) of the ITC can access APAs. APAs can be (i) unilateral, when they involve only the taxpayer and the IRA; or (ii) bilateral or multilateral, when they involve the taxpayer, its foreign counterparty(ies), the IRA and one or more foreign tax authorities.

APA Procedure

The unilateral APA procedure is regulated by Article 31-ter of the Presidential Decree No 600/1973 and by its implementing regulations issued by the IRA Director on 16 March 2016 (2016 Regulations). For the bilateral and multilateral APA procedure, the governing provision is laid down by the relevant DTT and in particular by the rule corresponding to Article 25(3) of the OECD Model Convention on Income and on Capital, which provides for mutual agreement procedures (MAPs) between the tax authorities of the contracting states aimed at avoiding double taxation.

The APA procedure is concluded (i) in the case of unilateral APAs, with the execution of a binding agreement by and between the IRA and the Italian taxpayer; or (ii) in the case of a bilateral or multilateral APAs, with the execution of a binding agreement by and between the IRA and one or more foreign tax authorities, as well as of a corresponding binding agreement by and between the IRA and the Italian taxpayer mirroring the transfer pricing method and criteria agreed upon between the tax authorities.

During the effectiveness of the APA, the tax auditors are prevented from auditing the transactions covered by the APA. The office in charge of the administration of the programme has the power to assess if the taxpayer complied with the terms and conditions set out by the APA and if no changes occurred in the factual and legal circumstances founding the APA. Both unilateral and bilateral/multilateral APAs can be renewed upon request of the taxpayer.

The APA programme is administered by the IRA. Specifically, unilateral APAs are administered by the Revenue Agency - Large Taxpayer Central Directorate – Audit Sector – Advanced Agreement Office (Agenzia delle Entrate, Direzione Centrale Grandi Contribuenti, Settore Controlli, Ufficio Accordi Preventivi); while bilateral and multilateral APAs are administered by the Revenue Agency – Large Taxpayer Central Directorate – Audit Sector – Resolution and Prevention of International Tax Disputes Office (Agenzia delle Entrate, Direzione Centrale Grandi Contribuenti, Settore Controlli, Ufficio Risoluzione e Prevenzione Controversie Internazionali).

Italian laws do not provide for automatic co-ordination between the APA process and mutual agreement procedures (MAPs). Nevertheless, consistency is normally secured because the same office is in charge of both MAPs and bilateral/multilateral APAs.

There are no limits on which taxpayers and/or transactions are eligible for an APA. Indeed, an APA application can be submitted by all Italian taxpayers regardless of the size of the activity performed and of the kind of the intercompany transaction to be covered, provided that the provisions laid down by Article 110(7) of the ITC apply.

Italian laws do not provide for a deadline to file an APA application even if the date of filing can be relevant for the purposes of the application of roll-back mechanisms for bilateral and multilateral APAs.

A mandatory deadline is provided for the submission of the APA renewal application. Indeed, pursuant to Article 10 of the 2016 Regulations, taxpayers willing to renew a unilateral APA, must submit the renewal application 90 days before the end of the fiscal year in which the APA's validity expires. The same deadline should also apply to the agreement executed by and between the IRA and the taxpayer following a bilateral or multilateral APA.

APA user fees are only necessary for the submission of bilateral and multilateral APA applications starting from 1 January 2021. The admissibility of the application is subject to the payment of a fee equal to:

  • EUR10,000, where the overall turnover of the group, to which the applicant belongs, is less than EUR100 million;
  • EUR30,000, where the overall turnover of the group, to which the applicant belongs, is between EUR100 million and EUR750 million; and
  • EUR50,000, where the overall turnover of the group, to which the applicant belongs, exceeds EUR750 million.

The above-mentioned fees are halved for the request of an APA renewal. 

Specific regulations were issued by the Revenue Agency’s Director (Reference No 2021/297428) on 2 November 2021, in order to provide implementing measures for the payment of the fees due for the request of a renewal. Such specific regulations also clarified (i) that for the determination of the overall turnover of the group, reference should be made to the latest consolidated balance sheet available at the date of submission of the application; and (ii) that in the event of the submission of several requests for bilateral or multilateral APAs with different states, the applicant shall pay the fee, as determined by the rules listed above, for each bilateral application or for each foreign country involved.

No fees are required for unilateral APAs.

The conclusion of a unilateral APA binds the parties for five years starting from the fiscal year in which it is signed, provided that no changes occur to the factual or legal conditions which constitute the premise on which the clauses of the agreement are based. As for bilateral or multilateral APAs, these are binding according to the agreements reached with the foreign tax authorities and starting from the fiscal year in which the application was submitted. The duration of bilateral or multilateral APAs is agreed by the contracting competent authorities, and the tendency of the IRA is to propose a duration no longer than five years, aligned with the maturity of unilateral APAs.

Unilateral APAs can have retroactive effect (“rollback”) for one or more fiscal years preceding the effectiveness of the APA still open to tax assessment, if the following conditions are met: (i) the factual and legal circumstances on which the APA is based also existed in previous fiscal years, and (ii) no tax audits (access, inspections and verifications) covering previous fiscal years to be covered by the APA have been started.

As for the retroactive effect of bilateral and multilateral APAs, in addition to the above-mentioned conditions, it is also necessary to (i) submit a request for retroactive effect in the APA application, and (ii) obtain the consent of the relevant foreign tax authority(ies) to extend the effects of the APA to the previous fiscal years still open to tax assessment.

In both cases, if, from the retroactive effect of the APAs, upward adjustments are due, the taxpayer can spontaneously correct these using the ravvedimento operoso programme (as discussed in 5.1 Rules on Affirmative Transfer Pricing Adjustments) and by the submission of an amended tax return. No penalties apply to the higher taxes arising from the upward adjustment.

Administrative Tax Penalties

Italy has no specific transfer pricing penalties. However, administrative tax penalties generally also apply in the case of transfer pricing claims.

In particular, a transfer pricing claim may give rise to the application of the administrative penalties provided for by the Legislative Decree 18 December 1997, No 471 (Legislative Decree No 471/1997) (i) for an incorrect corporate tax return pursuant to Article 1(2); or (ii) if the transfer pricing adjustment also triggers a failure to apply withholding taxes, an incorrect withholding tax agent return pursuant to Article 2(2), each of which range between 90% and 180% of the higher corporate taxes/higher withholding taxes assessed as a consequence of the upward adjustment. Repeated violations can lead to further increases in the penalties.

Defences and exemptions

With respect to administrative penalties there are a number of potentially applicable exempting cases, including – in particular – where the violation deriving from incorrect estimates gives rise to a differential not exceeding 5% of the declared amount (Article 6(1) of Legislative Decree No 472/1997). Such exempting cases are, however, seldom recognised by the IRA.

Documentation requirements for penalty protection

More specifically, Article 26, Decree-law, 31 May 2010, No 78, converted into law with amendments by Article 1, Law, 30 July 2010, No 122, introduced into the Italian legal system a penalty protection rule for taxpayers that comply with certain transfer pricing documentation requirements for their intra-group transactions subject to transfer pricing rules.

Specifically, it is provided pursuant to Articles 1(6) and 2(4-ter) of the Legislative Decree No 471/1997 that no penalties apply if the taxpayer delivers documentation that is appropriate to allow control over the compliance of the prices charged with the arm’s-length principle, as determined in the 2020 TP DOC Regulation and as clarified by the Circular letter No 15 of 26 November 2021 (Circular No 15/2021). This is a replacement of the previous 2010 regulations that is substantially aligned with BEPS Action 13. In particular, penalties do not apply if the following conditions are met:

  • the taxpayer has communicated to the IRA through the relevant corporate tax return that it has prepared transfer pricing documentation;
  • the taxpayer delivers, within 20 days from the tax auditors’ request, transfer pricing documentation drafted in accordance with the template structure set out by the 2020 TP DOC Regulation;
  • the information reported in the delivered documentation is fully consistent with the underlying commercial reality; and
  • the documentation delivered in the course of an audit is complete and consistent with the provisions endorsed by the 2020 TP DOC Regulation (for further details see 8.2 Taxpayer Obligations under the OECD Transfer Pricing Guidelines).

On this point, Article 8 of the Ministerial Decree reiterates that transfer pricing documentation will be appropriate to allow for penalty protection whenever that documentation provides auditors with the information necessary for an accurate analysis of the transfer prices, regardless of the choice of method or the selection of the tested party or comparables. This protection will apply, as clarified by Circular No 15/2021, even if the transfer pricing documentation contains omissions or partial inaccuracies, provided that these do not hamper the IRA’s tax audit.

Criminal Tax Penalties

Furthermore, in addition to the above-mentioned administrative tax penalties, upward transfer pricing adjustments may – under certain circumstances – compel tax officers to refer the assessment to the public prosecutors to explore possible criminal tax law implications if certain thresholds are exceeded.

In particular, Article 4 of the Legislative Decree, 10 March 2000, No 74 provides for the imprisonment, from two to four and a half years, of anyone who, with the aim of evading tax, files an incorrect tax return whereby both of the following thresholds are exceeded: (i) the non-paid tax exceeds EUR100,000, and (ii) the upward adjustments exceed 10% of the positive elements indicated in the tax return or EUR2 million.

Defences and exemptions

However, under Article 4(1-bis) of the Legislative Decree, 10 March 2000, No 74, no criminal relevance is given to:

  • undeclared income deriving from improper classification or evaluation of positive or negative items of income that are real and properly disclosed in the accounts or in other documentation relevant for tax purposes;
  • wrong timing accrual;
  • non-deductibility of real costs; or
  • issues not related to the business activity of the taxpayer.

Therefore, based on the above-mentioned Article 4(1-bis), it is often argued that transfer pricing adjustments should be considered not relevant for criminal purposes if at least one of the above-mentioned conditions is met (especially in the cases where the taxpayer prepared TP Documentation).

Italian laws follow the three-tiered approach recommended by BEPS Action 13 and the OECD Guidelines (ie, master file, local file and country-by-country reporting).

Master File and Local File

As mentioned in 8.1 Transfer Pricing Penalties and Defences, a specific penalty protection regime has been introduced in 2010 whereby, should the tax auditors raise a transfer pricing claim, no penalties are levied if the taxpayer complies with specific documentation requirements and had timely filed a specific communication to the IRA within the corporate tax return on the availability of such documentation.

The 2020 TP DOC Regulation, which repealed the 2010 regulation, requires transfer pricing documentation that consists of a master file and a local file. Therefore, Italian taxpayers (including permanent establishments of non-Italian resident entities), wishing to benefit from the penalty protection regime, are obliged to prepare on a yearly basis both the master file and the local file. 

As to the master file, the 2020 TP DOC Regulation provides that this file has to contain information regarding the group, following the structure set out in paragraph 2.2, which substantially mirrors BEPS Action 13 and the OECD Guidelines; taxpayers are allowed to draft more than one master file if the group carries out several activities that are different from each other and regulated by specific transfer pricing policies. The Circular No 15/2021 clarified that taxpayers may also submit the master file prepared by the direct or indirect controlling entity, concerning the group as a whole or the individual division in which it operates, provided that such a document is (i) structured in the manner, and (ii) contains the information required by Annex I to Chapter V of the OECD Guidelines. However, where such document has a different structure or contains less information than that which can be inferred from the structure set out in paragraph 2.2, it must be supplemented by the taxpayer with a document linking the structure or with one or more appendices.

With regard to the local file, the 2020 TP DOC Regulation provides that this file has to contain information regarding the local entity and its intra-group transactions, and must be drafted following the structure set out in paragraph 2.3, which substantially mirrors BEPS Action 13 and the OECD Guidelines. Circular No 15/2021 clarified that a taxpayer may submit transfer pricing documentation with respect to a part of the intercompany transactions carried out. A simplification is provided for small and medium-sized enterprises (taxpayers with an annual turnover not exceeding EUR50 million that are not, directly or indirectly, controlled by, or in control of, entities exceeding the mentioned annual turnover): they can opt to update the benchmark analysis of the local file every three years (instead of annually), provided that (i) the comparability analysis has been performed using publicly available information sources; and (ii) the five comparability factors (characteristics of property or services, functions, assets and risks, contractual terms, economic circumstances, and business strategies) have not substantially changed.

Lastly, the 2020 TP DOC Regulation also sets out the content and the structure of the documentation to be followed by the taxpayers for applying the simplified approach for intra-group low value-adding services.

It is worth mentioning that Circular No 15/2021 clarified that taxpayers, in the case of doubts about the content that needs to be included in the master file and local file, may refer to the OECD Guidelines.

In order to benefit from the penalty protection, both the master and local files must be:

  • prepared on a yearly basis, following the structure indicated in the 2020 TP DOC Regulation;
  • drafted in Italian (however, it is permissible to have the master file in English);
  • signed by the taxpayer’s legal representative or by a delegate by digital signature with time stamp to be affixed within the date of the submission of the tax return; and
  • submitted in an electronic format and delivered within 20 days from the tax auditors’ request.

As stated above, the existence of the transfer pricing documentation must be communicated to the IRA in the corporate tax return.

Circular No 15/2021 clarified that, in the event the taxpayer opts to submit the transfer pricing documentation only for a part of the intercompany transactions carried out, the above penalty protection will apply only with respect to the transactions described.

Country-by-Country Reporting

With Law 28 December 2015, No 208 (Finance Act 2016), Italy introduced country-by-country reporting (CbCR) obligations in accordance with Action 13 of the OECD BEPS project. On 8 March 2017, the Decree of the Italian Ministry of Finance implementing the CbCR obligations (CbCR Decree) was published. The law introduced a CbCR obligation for MNE groups to deliver a comprehensive report to the IRA reflecting their activities and taxes paid in each country where the group operates (eg, revenues, profits before tax and corporate income tax paid).

Under the CbCR Decree, CbCR obligations may only apply to Italian-resident companies that belong to an MNE group whose consolidated revenues are not lower than EUR750 million (or a corresponding amount in the local foreign currency). An MNE group means a plurality (group) of enterprises, resident in different jurisdictions (or having permanent establishments in different jurisdictions), that are linked by a control or ownership relationship and are obliged to draft consolidated financial statements according to domestic accounting principles (or that would be obliged if the shares of any of the enterprises were traded on a regulated market).

The following entities are obliged to file CbCR under the CbCR Decree.

  • The Italian resident parent company of an MNE group (Parent); ie, the company obliged to draft consolidated financial statements according to its accounting principles and which is not controlled, whether directly or indirectly, by other enterprises of the MNE group.
  • Italian resident subsidiaries of an MNE group (Subsidiary), if:
    1. the non-resident parent company is not obliged to file CbCR in its state of residence; or
    2. there is no qualifying automatic exchange of information (AEoI) agreement for CbCR purposes between Italy and the state of residence of the non-resident parent company; or
    3. the IRA has notified the Italian resident Subsidiary that the state of residence of the Parent suspended the AEoI or repeatedly omitted to transmit the CbCR files to the IRA.

Even if there is no qualifying AEoI agreement, an Italian Subsidiary is, in any case, exempted from filing the CbCR in the following circumstances:

  • the MNE group has more than one subsidiary in the EU and designates another subsidiary to file the CbCR, provided that such subsidiary receives all the information needed to prepare the filing;
  • the MNE group voluntarily appoints a surrogate parent company to file the CbCR in its state of residence, provided that if the surrogate parent company is resident in a non-EU state, additional requirements must be met (eg, it must be resident in a state with mandatory CbCR rules and with a qualifying AEoI agreement with Italy); or
  • the Parent voluntarily files CbCR with the tax authorities of its state of residence, subject to certain additional conditions (eg, the foreign state should enact CbCR legislation by the deadline for filing the first CbCR under the CbCR Decree).

As discussed in 1. Rules Governing Transfer Pricing, Italian transfer pricing regulations are substantially aligned with BEPS Action 13 and OECD Guidelines. Therefore, there are no notable differences to be highlighted.

Italian transfer pricing rules consistently apply the arm’s-length principle under all circumstances.

As discussed in 1. Rules Governing Transfer Pricing, Italian transfer pricing regulations have been amended in order to better align the rules with the best international practices (ie, OECD Guidelines as amended following the BEPS project).

Italy has been contributing to the collective effort to redefine international tax rules for the digital economy since its inception in the OECD. Indeed, it participated in the discussions that led the OECD and the G20 to adopt the first report on the taxation of the digital economy, consisting of Action 1 (Tax Challenges arising from the digitalisation) of the action plan, developed by the OECD to counter the phenomena of base erosion and profits shifting (BEPS). 

Italy chaired for the first time in 2021 the G20, a privileged discussion forum for the world’s major economies, which has supported the work carried out so far at the OECD. Under, the Italian Presidency of the G20, on 8 October 2021 a historic agreement was reached between 136 countries of the OECD/G20 Inclusive Framework on a two-pillar solution of reforming the international tax rules, to be implemented in 2023.

In support of this agreement, Italy (and other countries, like, Austria, France, Spain, the United Kingdom) and the United States signed on 21 October 2021 a transitional agreement to move from the current taxes on digital services to the new multilateral solution: US has to stop the trade measures against Italy and the other signing countries and the latter have to allow a certain method to credit the digital services tax paid against the Pillar One liability in order to avoid double taxation, once the Pillar One rules are implemented. Furthermore, Italian legislation on digital services tax already sets for the repealing of the digital services tax when the political agreement on digital economy taxation will be implemented.

More in general, it is expected that these initiatives could have an impact also on the domestic legislation which could be subject to amendments when the work on the two-pillars solution will be completed.

As a general rule, Italy applies the OECD Guidelines on risks, recognising a return to the entity actually assuming them, taking also into account through a functional analysis how related parties involved in the controlled transaction operate in relation to the assumption and management of the specific, economically significant risks, identifying in particular who performs control functions and risks mitigation functions, who bears the consequences arising from the risk outcomes and who has the financial capacity to assume the risk. 

As discussed in 1. Rules Governing Transfer Pricing, Italian transfer pricing regulations have been aligned with international best practices (ie, OECD Guidelines as amended following the BEPS project). There is no reference in Italian legislation or administrative guidance to the UN Practical Manual on Transfer Pricing.

Special rules for low value-adding intercompany services are provided by Article 7 of the Ministerial Decree. This provision, mirroring the OECD Guidelines, provides for a simplified approach to assessing the consistency with the arm’s-length principle of certain qualified services. These are services which (i) are of a supportive nature, (ii) are not part of the core business activity of the group, (iii) do not require the use of unique and valuable intangibles and do not lead to the creation of the same and (iv) do not involve the assumption or control of substantial or significant risk by, or give rise to the creation of significant risk for, the service provider.

In accordance with the OECD Guidelines, the remuneration of the above-mentioned services is deemed to be arm’s length if a mark-up of 5% is applied on the direct and indirect costs borne for the performance of the same services. Therefore, if the simplified approach is applied, a specific benchmark to test the arm’s-length value is not required. However, in order to apply such a simplified approach, the taxpayer must draft specific documentation in accordance with the detailed content set out by the 2020 TP DOC Regulation.

Italian laws do not provide for specific rules governing savings arising from operating in Italy; in line with the general OECD recommendations, savings arising from operating in Italy should be taken into account in the functional analysis as they are an economic characteristic of the market.

Italian laws provide notable unique rules applicable to the determination of the transfer pricing applicable to online advertising sales and ancillary services rendered by Italian taxpayers to related foreign parties. Specifically, Article 1(177) of Law 27 December 2013, No 147, provides that in determining the pricing of online advertising sales and ancillary services, taxpayers must use profit indicators other than those applicable to costs incurred for carrying out the activity (essentially, the CPM and TNMM based on costs). The use of profit indicators based on costs is allowed only if an APA is reached with the IRA.

There are no specific rules requiring co-ordination between transfer pricing and customs valuations; it is worth mentioning that the Italian Customs and Duty Agency provided high level guidance in Circular 6 November 2015, No 16 regarding customs valuation of the transactions between related parties.

Italian laws do not provide for a specific controversy process for transfer pricing matters. Accordingly, general rules apply.

Administrative Tax Assessment

As a rule, in the case of a tax audit (which can be performed both by the IRA and the Guardia di Finanza), the tax auditors serve the taxpayer with a tax audit report (Report), that describes the outcome of the audit activity and the findings of the auditors. The Report is not enforceable against the taxpayers and does not contain any request of payment of higher taxes and/or penalties.

To raise an enforceable claim against the taxpayer, the IRA issues a tax assessment notice (the Guardia di Finanza are not entitled to issue tax assessments). Note that, in certain cases, a tax assessment notice could be issued also in the absence of previous audit activity.

Before the tax assessment notice is served, the taxpayer has the following options:

  • to accept wholly or partially the findings of the Report, spontaneously correct the violations by paying the amount due (higher tax and interest) and the applicable minimum penalty (if any) reduced to 20% (ravvedimento operoso), and submit amended tax returns;
  • to file observations/comments to the competent Office of the IRA (the law provides a 60-day freezing period after the issue of the Report during which the IRA cannot issue a tax assessment notice to give the taxpayer time to provide observations); and/or
  • to submit a formal application to start discussion with the competent Office to redetermine the findings in a settlement procedure.

Based on the Report and taking into account the discussion with, and the observations of, the taxpayer, the competent Office may withdraw/amend the claims or issue the formal tax assessment notice.

Once the formal tax assessment notice is served to the taxpayer, the latter has the following options.

  • Within 60 days from the service date, subject to extension for the summer period, (the “Appeal Deadline”), to submit a formal settlement application to the competent Office, which allows the taxpayer and the IRA to discuss the content of the tax assessment notice and to negotiate a reduction/withdrawal of the adjustments raised (note that such alternative is not available if a settlement phase had already taken place before the issue of the tax assessment notice); this application suspends the Appeal Deadline by 90 days. In the case of a settlement, penalties, if any, are reduced to ⅓ of the minimum applicable. If the negotiation fails, the taxpayer can still appeal before the competent First Instance Tax Court no later than the extended Appeal Deadline.
  • Within the Appeal Deadline, file the appeal against the tax assessment notice before the competent First Instance Tax Court.
  • Accept the claim and pay the relevant amounts within the 60 days; in this case the penalties are reduced to ⅓ of the amount charged in the tax assessment notice.

The taxpayer is entitled, before filing the appeal, to pay ⅓ of the penalties indicated in the tax assessment notice, if any, thus reducing the risk of negative litigation. However, if the taxpayer prevails in Court, the penalties paid will not be reimbursed.

Tax Litigation Procedure

The First Instance Tax Court schedules a hearing; the taxpayer is entitled to file additional documentation and briefs before the Court within certain time limits.

Pending the appeal, the taxpayer is still in a position to negotiate a settlement with the competent IRA Office, which must be concluded within the date scheduled for the first hearing before the First Instance Tax Court. If the negotiation is successful, the penalties, if any, are reduced to 40% of the minimum applicable.

The decision issued by the First Instance Tax Court may be appealed both by the IRA Office and by the taxpayer before the competent Second Instance Tax Court. Pending the second instance procedure, the taxpayer may further negotiate a settlement (if the negotiation is successful, the penalties, if any, are reduced to 50% of the minimum applicable). The decision issued by the Second Instance Tax Court may be appealed by both parties before the Supreme Court but only for reasons based on violation of legal provisions (ie, generally, factual circumstances and amounts cannot be challenged). It is possible that the Supreme Court, rather than issuing a final judgment, will refer the case back to a different chamber of the Tax Court that issued the decision (generally the Second Instance Tax Court), so that the litigation process can continue.

Provisional Collection Pending Litigation

The tax assessment notice containing a transfer pricing claim is enforceable (ie, the taxpayer has to pay on a provisional basis, as a rule, ⅓ of the higher taxes assessed and interest pending tax litigation within the Appeal Deadline, as possibly extended if a settlement application is filed).

Under motivated and exceptional circumstances, the IRA can decide on provisional collection for the full amount of the assessment.

If the taxpayer does not pay within the above-mentioned deadline, the IRA will instruct the collection agent to start the collection procedure (the collection procedure cannot generally be started in the 30 days following the filing of the appeal). After this 30-day period, a “grace” period of 180 days is in any case granted under law to all taxpayers. The suspension is not granted in the case of precautionary measures (eg, seizure of assets) and when the IRA Office claims that the collection is at risk.

After the First Instance Tax Court decision, to the extent unfavourable for the taxpayer, the collection agent can collect up to ⅔ of the higher taxes and penalties as determined by the decision, plus interest. After the Second Instance Tax Court decision, to the extent unfavourable for the taxpayer, the Collection Agent may request 100% of the taxes and penalties as determined by the decision, plus interest.

The taxpayer can also ask for a suspension of the collection according to the following procedures.

  • Based on the administrative proceeding, the IRA Office is entitled, at its discretion, to totally or partially postpone the collection, upon written request of the taxpayer (possibly by requesting guarantees); this remedy will remain in force until the judgment of the First Instance Tax Court.
  • Under the judicial proceeding, the taxpayer can request the postponement directly from the First Instance Tax Court; this request can be filed together with the appeal as well as after it, but no later than the first hearing on the merit – the postponement is granted at the discretion of the Court if the judges conclude that:
    1. there is fumus boni iuris (ie, the arguments of the appeal are well grounded prima facie); and
    2. there is periculum in mora (ie, there is a well-founded risk that the taxpayer may suffer from financial detriment as a consequence of the provisional collection).

Italy has a well-developed legal system that puts taxpayers in the position to prevent domestic transfer pricing disputes, through unilateral or bilateral/multilateral APAs, and to resolve them out of court through competent authorities procedures (MAPs and arbitration procedures), that can ensure elimination of double taxation, or settlement procedures that allow taxpayers to significantly reduce penalties (where taxpayers did not have proper transfer pricing documentation).

As a result, in many cases, transfer pricing claims are solved out of court. Especially, in recent years there has been a trend to start competent authority procedures instead of court proceedings, particularly where there are no penalties. This is the reason why the number of court rulings on transfer pricing matters is quite limited in comparison with the overall number of transfer pricing challenges.

In the last decade one of the most notable transfer pricing topics discussed before Italian courts has concerned the procedural ramifications of Article 110(7) of the ITC and, in particular, whether the initial burden of proof lies on the taxpayer, which will have to demonstrate that its transfer pricing policy is in line with the arm’s-length principle, or on the IRA, which will have to demonstrate effective non-compliance with the arm’s-length principle and the low level of taxation in the state of residence of the related party involved in the controlled transaction. According to the several Supreme Court decisions, the burden of proof in transfer pricing primarily lies on the IRA (see, for example, the Decisions of the Supreme Court, 13 October 2006, No 22023 and 16 May 2007, No 11226). In such decisions, the Supreme Court has stated that the taxpayer is not required to prove the accuracy of transfer prices applied, unless the tax authorities have themselves first provided proof of effective non-compliance with the arm’s-length principle and the low level of taxation in the state of the related counterpart. Hence, it is up to the IRA to demonstrate that the conditions applied in the controlled transactions are not at arm’s length.

However, in the last five years, the Supreme Court has overturned this position. Indeed, the Supreme Court has stated that, in transfer pricing disputes, the burden of proof initially lies on the taxpayer, which will have to demonstrate that its transfer pricing is in line with the arm’s-length principle while it secondarily shifts to the IRA, which does not have to demonstrate the low level of taxation in the related counterparty state, but still has to demonstrate the reasons why the taxpayer’s reasoning is not valid (see, for example, Supreme Court decisions No 6656 of 6 April 2016; No 20805 of 6 September 2017; No 5645 of 2 March 2020; No 5646 of 3 March 2020; No 11837 of 18 June 2020; No 21828 of 9 October 2020; No 22695 of 19 October 2020; No 230 of 12 January 2021, 1232 of 21 January 2021 and No 2908 of 31 January 2022).

Outbound payments (eg, royalties) relating to uncontrolled transactions are not restricted by Italian laws and/or by IRA practices.

Outbound payments (eg, royalties) relating to controlled transactions are not restricted by Italian laws and/or by IRA practices.

Italian laws do not have rules regarding the effects of other countries’ legal restrictions.

Except for the publication of statistics in compliance with international standards, the IRA does not publish any information regarding APAs or transfer pricing audit outcomes.

Use of secret comparables is not explicitly prohibited by Italian law. However, as stated, the OECD Guidelines are consistently applied by the IRA. Therefore, it may be reasonably held that the use of secret comparables would be permitted only if the IRA were to disclose such data to the taxpayer so as to allow the exercise of a proper right of defence.

For the time being there have been no specific amendments or adjustment to the transfer pricing rules and guidance in Italy in connection with the COVID-19 pandemic.

At the outbreak of the pandemic, the Italian government enacted several measures to face the COVID-19 health emergency and to support families, workers and businesses. Mainly, the government extended the deadlines for certain tax payments and tax compliance obligations; in certain cases, payment obligations were fully relieved.

Aside from employment-related subsidies, the government also introduced specific incentives for equity enhancement and investments and certain tax credits aimed at supporting, inter alia, tenants of business properties, investment in R&D and capital assets as well as the implementation of COVID-19 safety measures in workplaces.

The tax auditors’ activities were suspended for a period of 84 days in 2020 due to the restrictive measures imposed by the government to deal with the health emergency. Although the suspension of the audit activities was limited to a certain period of time, de facto tax audits suffered a significant downsizing.

Maisto e Associati

Piazza Filippo Meda 5
20121 Milano
Italy

+39 0277 69 31

+39 0277 69 3300

info@maisto.it www.maisto.it
Author Business Card

Trends and Developments


Authors



Maisto e Associati was established in 1991 as an independent Italian tax law firm with offices in Milan, Rome and London. Over the years, the firm has grown consistently and now has 60 professionals, including 12 partners and two of counsel, with consolidated experience in managing complex domestic and multi-jurisdictional cases. It has a long tradition of transfer pricing, with a dedicated team that has a depth of expertise in assisting multinational groups with reference to all issues connected to transfer pricing. Maisto e Associati has an outstanding track record in the negotiation of unilateral and bilateral advance pricing agreements, requests for unilateral recognition of the downward adjustment of the income of a resident company following a transfer pricing adjustment carried out by the financial administration of another state, competent authorities procedures for the management of tax disputes concerning the adjustment of the profits of associated companies, and assistance on transfer pricing audits.

Recent Developments on Year-End Transfer Pricing Adjustments in Italy

Introduction

Year-end transfer pricing adjustments go beyond the corporate income tax field since they can have implications that are different to those derived from direct taxes. This was reconfirmed in recent rulings published by the Italian Revenue Agency (IRA). In particular, the IRA published rulings regarding year-end transfer pricing adjustments answering certain taxpayers’ requests for clarification regarding the potential VAT ramifications of year-end transfer pricing adjustments.

Furthermore, the IRA recently also analysed year-end transfer pricing adjustments with respect to the DAC6 reporting obligations laid down by Legislative Decree No 100 of 30 July 2020 (Legislative Decree No 100/2020), implementing in Italy the Directive 2018/822/EU of 25 May 2018 on tax administrative co-operation, which introduced a new mandatory automatic exchange of information in relation to potentially aggressive cross-border arrangements (DAC6 Directive).

More precisely, with Ruling No 529 of 6 August 2021 (Ruling 529/2021) and Ruling No 884 of 30 December 2021 (Ruling No 884/2021), the IRA dealt with year-end transfer pricing adjustments and VAT; and with ruling No 78 of 31 December 2021 (Ruling No 78/2021), the IRA dealt with year-end transfer pricing adjustments and reportable obligations for the purposes of the DAC6 Directive.

Year-end transfer pricing adjustments and VAT

The IRA’s position addressing potential VAT ramifications deriving from transfer pricing adjustments is actually not new. Indeed, in the past the IRA had already addressed the same matter with ruling No 60 of 2 November 2018. Subsequently, with Rulings No 529/2021 and No 884/2021, the IRA has confirmed its previous position, addressing potential VAT ramifications deriving from transfer pricing adjustments, that may occur among related parties, during the year and/or at the end of the year.

The first ruling (No 529/2021) dealt with a case involving a pharmaceutical group, where a company (Company A) developed and manufactured the active ingredient, and the foreign related party manufactured the final products and then distributed them in Italy and in other European countries. Company A sold the active ingredient to the related party at a provisional price; the final price of the same was calculated, on a quarterly basis, as the difference between the profit earned by Company A and the profit earned by the related party with respect to each product developed in the relevant geographical area of competence. Therefore, the final price was specifically determined for each marketed product. 

The second ruling (No 884/2021) dealt with a case where an Italian sub-holding (ALFA) of a parent company BETA, in addition to operating directly in the manufacturing and marketing of clothing products exclusively for the BETA brand, was also responsible for managing European subsidiaries, each of which operated BETA-branded retail shops located in the relevant geographical area of competence.

ALFA transferred finished products to its European subsidiaries to be resold by each of them in their own retail shops in the relevant market. The BETA group transfer pricing policy provided that intra-group transfer prices charged by ALFA to its European subsidiaries were subject to a two-stage study, as follows.

  • An internal compared uncontrolled price (CUP) methodology was used, comparing the price applied by ALFA, net of some adjustments, to its European subsidiaries with the price applied by ALFA in similar transactions carried out with third parties.
  • A corroborative analysis (sanity check) was carried out at the end of the year using the transactional net margin method (TNMM), to ensure that, without prejudice to the application of the intra-group prices identified according to the internal CUP method (net of the appropriate adjustments), the margins (expressed in terms of operating margin or return on sales) of the European subsidiaries were also consistent with their functional profile and fell within the interquartile range of the specific benchmarking performedby BETA group.

Therefore, ALFA used the internal CUP methodology to determine ex ante the prices to be charged for all intragroup sales. Then, in certain cases the corroborative analysis, conducted (at the end of the year) in accordance with the BETA group transfer pricing policy, showed that in the year under analysis the European subsidiaries achieved margins higher than the upper quartile of the reference benchmark. Consequently, in order to bring the operating margins back to levels consistent with the functional and risk profile of the European subsidiaries, adjustments had to be made.

In both cases, taxpayers asked the IRA to provide clarifications about the VAT treatment applicable to the aforesaid transfer pricing adjustments.

According to the IRA, the transfer pricing adjustment is relevant for VAT only if the payments made against the transfer pricing adjustments constitute one of the following.

  • The consideration for a new supply of goods and/or services (within the meaning of Articles 2 and 3 of Presidential Decree No 633 of 1972), made by the recipient of the amount paid; to this end, based on the principles stated in some decisions of the European Court of Justice (CJEU), the IRA clarified that it is necessary to identify the existence of a legal relationship with mutual services between the parties and, consequently, verify whether there is a direct link between the transfer pricing adjustments and any sale of goods and/or provision of services provided by the recipient of the amount paid (Ruling No 884/2021).
  • An increase in the VAT taxable amount (within the meaning of Article 13 of Presidential Decree No 633 of 1972) of the original supplies of goods; to this end, based on the European Commission VAT working paper 923, (taxud.c.1(2016)1280928) of 28 February 2017, the IRA clarified that it is necessary that the following three conditions are met:
    1. there is a consideration, in cash or in kind for said adjustment;
    2. the sales of goods and/or supplies of services to which the consideration refers to are identified; and
    3. there is a direct link between the sales of goods/provisions of services and the consideration (Ruling No 529/2021 and Ruling No 884/2021).

With regard to the first case (Ruling No 529/2021), based on the above principles, the IRA stated that, taking into account the particular price-setting for the active ingredient agreed upon by Company A and its foreign related party, it appears that a direct link between the amount determined as final price and the transfers of the active ingredient can be identified. The final amount determined as a difference between the profit earned by each party involved constitutes a mere adjustment of the original sale price. Therefore, such adjustments must, in principle, be considered relevant for VAT purposes directly affecting the VAT taxable amount, either decreasing or increasing it, depending on the differences in the profit made by the two parties.

In the second case (Ruling No 884/2021), the IRA reached the opposite conclusion. Based on the transfer pricing policy applied by BETA group, IRA stated that the examined transfer pricing adjustments are out of VAT scope, since:

  • the payments due in the examined case as a result of the transfer pricing adjustments do not represent the actual consideration – either for specific supplies of goods, or for new services provided by the recipient of the amounts (ie, ALFA) – as the payment was exclusively aimed at ensuring the European subsidiaries an operating margin falling within the arm’s-length range identified by the specific benchmarking performed by BETA Group; and
  • even though, in fact, the adjustments made under the TNMM result in the allocation of a higher cost to the foreign subsidiaries, it is not possible to establish that said cost increase is directly linked to the original supply of goods already carried out and, therefore, that the payment constitutes an upwards adjustment to the VAT taxable base of those transactions.

Year-end transfer pricing adjustments and reportable obligations under DAC6

Ruling No 78/2021, as anticipated, addresses the link between year-end transfer pricing adjustments and reportable obligations under DAC6, as implemented by Legislative Decree No 100/2020, substantially mirroring the DAC6 provisions. The Ministerial Decree of 17 November 2020 provides for a more detailed analysis of the hallmarks and sets forth the operating rules of DAC 6. With Circular Letter No 2 of February 10th, 2021 (Circular No 2/2021), the IRA provided guidance regarding the subjective and objective scope of the provisions and criteria that make a cross-border arrangements subject to mandatory reporting by intermediaries or taxpayers.

Under DAC 6, any arrangement that involves two or more countries must be reported to the competent tax authorities if at least one of the countries involved is in the EU member state and if the arrangement meets certain criteria (hallmarks) that could indicate its potentially tax aggressive nature. The hallmarks are set out in Annex 1 to Legislative Decree No 100/2020, mirroring the DAC6 hallmarks (set out in Annex IV of the DAC 6). 

With Ruling No 78/2021, the IRA was asked to provide clarifications with particular regard to whether or not, based on DAC6 legislation, there is an obligation to communicate year-end transfer pricing adjustments made to non-resident subsidiaries under hallmark C, namely “specific hallmarks related to cross-border transactions”, point 1.b(i) or 1.b(ii), Annex 1 of Legislative Decree No 100/2020; ie, whether transfer pricing adjustments can be characterised as an arrangement that involves deductible cross-border payments made between two or more associated enterprises where the recipient is resident for tax purposes in a jurisdiction, and that jurisdiction either:

  • does not impose any corporate tax or imposes corporate tax at the nominal rate of zero or almost zero (point 1.b(i)); or
  • is included in a list of third-country jurisdictions which have been assessed by member states collectively or within the framework of the OECD as being non-cooperative (point 1.b(ii)).

In particular, the applicants pointed out that, at the end of each year, they assess the operating result achieved by their non-resident subsidiaries and, where this result falls below a certain target, they make, in their favour, appropriate adjustments to the prices of finished products transferred during the year in order to ensure that the foreign subsidiaries achieve arm’s-length profitability. In particular, the applicants indicated that:

  • during the year “N”, they invoice the subsidiaries applying the product price list as defined ex ante;
  • at the end of the year “N”, they calculate any adjustments on the basis of centrally defined margins consistent with those resulting from specific benchmarking performed at group level;
  • given the timing of the closing of the statutory financial statements, they record the transfer pricing adjustments on an accrual basis for year “N”, which are calculated in January of the following year, “N + 1”, and invoiced to the foreign subsidiaries by the following months of “N+1”.

Based on the above-mentioned facts, with Ruling No 78/2021, the IRA stated that year-end transfer pricing adjustments must be reported under DAC6 legislation (Article 7(3) of Legislative Decree No 100/2020), provided that they are made to subsidiaries resident in a jurisdiction that:

  • does not apply any corporate income tax or applies corporate income tax whose rate is zero or close to zero (Annex 1 of Legislative Decree No 100/2020, letter C, point 1, letter b (1)), where according to Circular No 2/2021 close to zero means less than 1% provided that both the tax savings criterion and main benefit test are satisfied; or
  • is included in a list of third-country jurisdictions that have been assessed, collectively by the member states or in the framework of the OECD, as non-cooperative jurisdictions (Annex 1 of Legislative Decree No 100/2020, letter C, point 1, letter b (2)), provided that the tax savings criterion is also satisfied. 
Maisto e Associati

Piazza Filippo Meda 5
20121 Milano
Italy

+39 0277 69 31

+39 0277 69 3300

info@maisto.it www.maisto.it
Author Business Card

Law and Practice

Authors



Maisto e Associati was established in 1991 as an independent Italian tax law firm with offices in Milan, Rome and London. Over the years, the firm has grown consistently and now has 60 professionals, including 12 partners and two of counsel, with consolidated experience in managing complex domestic and multi-jurisdictional cases. It has a long tradition of transfer pricing, with a dedicated team that has a depth of expertise in assisting multinational groups with reference to all issues connected to transfer pricing. Maisto e Associati has an outstanding track record in the negotiation of unilateral and bilateral advance pricing agreements, requests for unilateral recognition of the downward adjustment of the income of a resident company following a transfer pricing adjustment carried out by the financial administration of another state, competent authorities procedures for the management of tax disputes concerning the adjustment of the profits of associated companies, and assistance on transfer pricing audits.

Trends and Development

Authors



Maisto e Associati was established in 1991 as an independent Italian tax law firm with offices in Milan, Rome and London. Over the years, the firm has grown consistently and now has 60 professionals, including 12 partners and two of counsel, with consolidated experience in managing complex domestic and multi-jurisdictional cases. It has a long tradition of transfer pricing, with a dedicated team that has a depth of expertise in assisting multinational groups with reference to all issues connected to transfer pricing. Maisto e Associati has an outstanding track record in the negotiation of unilateral and bilateral advance pricing agreements, requests for unilateral recognition of the downward adjustment of the income of a resident company following a transfer pricing adjustment carried out by the financial administration of another state, competent authorities procedures for the management of tax disputes concerning the adjustment of the profits of associated companies, and assistance on transfer pricing audits.

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