CC BY
24
THE HARMONIZATION OF DOMESTIC CORPORATE INCOME TAX LAW WITH EUROPEAN LAW: THE ITALIAN EXPERIENCE
Prof. FRANCO PAPARELLA
In the past few years it seems that also the Italian legislator has once and for all realised the importance of bringing internal tax rules in line with Community principles. This, not only in view of Italy's Community obligations, but above all in an effort to increase the level of competitiveness of Italian enterprises.
However, verifying the current level of harmonization of the Italian tax system is not a task that can be fully accomplished on this occasion since there are countless sectors of Italian tax law that pose significant compatibility problems with the laws of the other Member States. Therefore, I am obliged to select the issues that are most relevant for the purpose of this comparative analysis and for this reason I shall focus my attention on the three following issues:
i) the main and most recent legislative solutions aimed at harmonizing internal tax law with EU
ii) the age-old question of harmonizing the criteria for calculating corporate tax bases in the light of important decisions issued recently by the European Court of Justice;
iii) the issue of conformity of the current indirect taxation system with Article 33 (1) of the Sixth VAT Directive, with specific regard to the well-known case of the Italian Regional Tax on Productivel Activities («IRAP»).
Due to the lack of time at my disposal unfortunately, I shall also deliberately overlook important issues that indeed would serve as useful background in my analysis of the subject-matter, in particular concerning harmonisation20, as material resulting from the direct application of Article 93 (ex Article 99) of the EC Treaty and the indirect application of Article 293 (ex Article 220) - and therefore for example the difference between rapprochement and harmonisation21, the fundamental role of harmonisation in the fiscal integration process (both positive22 and negative23), the tendency to transform the concept of «harmonisation» into «coordination24» - and concerning the meaning to be preferred over the different criteria expressing the «valuation of compatibility25».
1 - A brief introduction of the «European» connotation of the Italian tax system.
In the evolution of Italian tax law, without reaching too far back in time, the main point of reference has been the Delegated Law no 80 of 7 April 2003 - entitled «Delegation to the Government for the reform of
principles;
38
the national tax system» - followed by Legislative Decree no 344 of 12 December 200326, which profoundly modified the Italian Income Tax Code contained under Presidential Decree no 917 of 22 December 1986 (the «ITC»).
The objective of the delegated law on the taxation of enterprises is clearly illustrated in the explanatory report, which clarifies that its aim is to «harmonise our tax system with the more efficient systems implemented in industrialised countries; in particular in the Member States of the European Union» and goes on to specify under Article 2 (1) (b) that «the tax rules conform to the fundamental principles of Community law and do not prejudice the application of international conventions in Italy». Consequently, it would have been logical to expect a markedly Europeanistic reform. Unfortunately, this was not the case for many areas of corporate taxation. In this sense, it will be useful to quickly review the single legal institutions and make general considerations27.
a) Participation exemption.
After a complex process, Italy brought its legislation in line with that of the other Member States with the aim of eliminating the problem of double taxation on the distribution of dividends. Before the reform under Delegated Law no 80 of 2003, Italy applied a system of tax credits with respect to distributed dividends for taxes paid by a subsidiary. However, this model posed numerous difficulties in terms of its application and gave rise to significant doubts as to whether or not this system was compatible with EU law since it discriminated between resident shareholders/enterprises and non-residents28.
Without a doubt, the abolition of the tax credit system and the implementation of the participation exemption regime constituted an important step towards harmonisation. However, certain aspects of the regime, which I shall only briefly mention, are of dubious rationality and compatibility with EU regulations29.
Firstly, I refer to the decision to limit participation exemption (95%) only to dividends distributed between companies so that profits received by individuals are subject to 40% income tax. Indeed, in both cases it is reasonable to conclude that for the Italian tax system double taxation is no longer an exception but rather a clear legislative decision.
No less significant is the fact that in Italy the stake originally had to be held without interruption for a minimum holding period of one year, unlike in the majority of the other Member States. Consequently, the Italian legislator has recently increased the minimum holding period to 18 months (see Article 5 of Law no 248 of 2 December 2005).
Lastly, still with regard to intercompany dividends, the decision to continue applying a different tax treatment of capital gains and capital losses depending on whether the participation satisfies the requirements under Article 87 of the ITC, and thereby allowing shareholders to enjoy participation exemption, does not seem to be a worthwhile solution either, if only for the fact that it favours avoidance schemes when shareholders transfer securities based on the previous economic results of the subsidiary.
In my opinion, more than anything else, we are still faced with a fundamental question - one that many EU States are also faced with - and that is whether or not it is rational to provide exemption in cases where the distributed dividends do not arise from profit reserves but from aleatory and extemporaneous economic results (first among which are speculative capital gains deriving from abnormal market performance or the revaluation of fixed assets). In this way, we risk favouring fake economic results and on this the Community institutions should focus greater attention. In this sense, I believe that today Italy is the prime example of how exempt capital gains realised by a closed circle of businessmen can influence the stock market.
b) The notion of permanent establishment.
A similar argument can be made with regard to the notion of permanent establishments. This concept was historically referred to in the Italian legal tradition, but was never actually expressly defined by the Italian legislator. As a result, there was great uncertainty in that some preferred the definition under Article 9(1) of the Sixth VAT Directive no 77/388/EEC of 17 May 1977 while others favoured the one under Article 5 of the OECD Model Convention.
Within this context, however, the principle under Article 4 (1) (a) of Law no 80 of 2003 for a «definition of the notion of permanent establishment on the basis of the criteria inferable from international double taxation conventions» was widely shared. Yet the translation of this principle into Articles 162-164 of the ITC has been the source of significant interpretational problems since the definition is essentially based on the one contained in the OECD Model Convention, but shows notable differences also with respect to Community notions30.
c) The thin capitalization rule.
The evolution of the thin capitalization rule in Italy is completely unique31. Indeed, even though Delegated Law no 80 of 2003 stated that the rule was to be «in compliance with those in force in other European countries» and subject to the «condition that the financial charges do not flow into taxable income for income tax and corporate tax purposes» (Article 4, letter g) - in other words, the rule is essentially applicable only to non-resident recipients of interest - Italy completely changed its course in response to the well-known ruling of the European Court of Justice of 12 December 2002 on the Lankhorst-Hohorst case (C-324/00) against German thin capitalization rules32.
Consequently, the thin capitalization rule currently applied in Italy does not discriminate between residents and non-residents on the basis of the now abolished German model (whereby passive interest is non-deductible for the company receiving financing and financial proceeds are reclassified as dividends in the hands of the owner) and is generally deemed to be penalising since it prompts companies to seek external loans instead of shareholder loans.
Add to this that the criteria for the application of this disputable regime are less sophisticated and precise than those recommended by the OECD33 and that they differ profoundly from those in force in Germany, France, the UK and Belgium34, not to mention its incompatibility with EU legislation on double taxation and the interpretation of certain double tax treaties signed with other Member States35.
d) Domestic and worldwide tax consolidation regimes.
Introduced by the 2003 tax reform, domestic and worldwide tax consolidation are two absolutely innovative legal institutions for Italy.
The two models do not imply the filing of consolidated financial statements in a strict sense, but rather propose a single criterion for calculating the taxable base that takes into account the economic results of the consolidated companies36. In this way, the fiscal unit becomes a single taxable entity so that the losses made by one or more subsidiaries can be immediately offset. The result is similar to the one obtained by applying the flow-through taxation principle.
In principle, the two regimes are agreeable and all things considered are innovative in comparison to
the legislation of the other Member States, nonetheless they are extremely complex (see Articles 117 to 142 of the ITC) and some of their aspects are controversial.
For example, consider the problems of the relationship with minority shareholders who passively endure the effects of consolidation in favour of the parent company, the effects resulting from losing the prerequisites for applying for consolidation, or, above all, the delicate issue of joint liability linked to unitary tax returns and joint tax assessments. With regard to worldwide consolidation, consider the dissuasive «all in all out» principle, the difficulty of auditing the accounts of all the controlled companies, as well as the compulsory request for a tax ruling. Indeed, it is not surprising that already two years into the reform and no Italian company has yet filed a request for consolidation.
It should be noted however that most of these problems, at least for domestic consolidation purposes, can be mitigated by varying the area of consolidation based on the specific needs of the single subsidiaries, making the application of the consolidated regime extremely flexible.
e) Observance of Directive no 434 of 23 July 1990.
Extraordinary operations are the best expression of the attempts at European harmonisation of the principle underlying the Delegated Law, contained under Article 4 (m) of Law no 80 of 2003, and especially the attempts at bringing the neutrality principle in line with the «principle of continuity of values for tax purposes»37.
However, these attempts have failed on at least three different levels.
First, as to the principle of neutrality, notwithstanding the European vocation of the principle underlying the delegated law and despite the fact that the European Commission opened an infraction procedure for the violation of the obligations under Article 8 (1) of the Council Directive 90/434 on the exchange of shares between companies of different Member States governed by Article 2 (2) of Legislative Decree no 544 of 30 December 1992, under the Italian delegated law extraordinary operations do not generate tax-relevant capital gains in two cases: when there is continuity among the values recorded for accounting purposes and when there is continuity of the values for tax purposes. This latter case in clear contrast with Directive no 434 of 23 July 1990, which does not require continuity for accounting purposes but only for tax purposes38.
As confirmation of this, one need only recall the provisions under Article 175 (1) of the ITC on the contribution of businesses or shares and compare them with those under Article 176 (1) of the ITC on the contribution of businesses, to verify the relevance of the values recorded «in the accounts of the contributing party or, if higher, the value attributed to the contributed business or shares in the accounts of the receiving party» in the first case, or the continuity «of tax relevant value of the contributed business» in the second.
Secondly, certain aspects of the above provisions are clearly incompatible with the principles expressed in the Council Directive. For example, the Italian law does not extend the provisions on extraordinary operations to non-entrepreneurs and it presents territorial incongruencies in matters of contributions. Indeed, while Article 175 (1) of the ITC, on the contribution of businesses and shares, expressly refers to contributions «between Italian residents», the following Article 175 (3) subordinates the possibility of non-residents taking advantage of Article 175 (1) upon the condition that the business is situated in the territory of the State, thus potentially violating the principle of non-discrimination.
Instead, even more serious is the issue of the exchange of shares as per Article 177 of the ITC in
consideration of the strong doubts that were raised as to the conformity of Article 5 of Legislative Decree no 358 of 199739 with Community rules. Indeed, the current ITC rules:
1. abolish the exchange of shares through the contribution of shares or quotas on a domestic level, but permit it on a Community level under Article 179 (4) of the ITC, which was (in vain) also deemed irrational in the opinion issued by the Finance and Treasury Committee of the Chamber of Deputies on the scheme of the legislative decree;
2. continue to unjustly exclude individual entrepreneurs and partnerships from making contributions, but allows them, under Article 179 (4) of the ITC, to do so in Community-level exchanges, thereby encouraging the establishment (and localisation) of holding companies abroad;
3. confirm provisions on equalisation that are incomplete and wholly out of sync with the Community directive seeing that maximum cash equalisation payments are still set at 10% and that it is not specified how income proceeds should be qualified.
Lastly, another shortcoming of the 2003 reform is that it is obsolete in light of the recent and important modifications made to Council Directive 90/434.
Indeed, in compliance with the instructions imparted on 23-24 March 2000 by the Council of Europe in Lisbon, on 17 October 2003 the proposal for Council Directive COM (2003) 613 final40 (now Council Directive 2005/19/EC) was issued. Council Directive 2005/19/EC modified Council Directive 90/434 on the common system of taxation applicable to mergers, divisions, transfers of assets, and exchanges of shares concerning companies of different Member States. The significant innovations include the transfer of the company seat of a Societas Europea and a European Cooperative Society (as per the Directive and Regulation of 8 October 2001)41, the new provisions on split-offs, the transformation of permanent establishments into associated companies, the valuation of securities received by shareholders during split-offs and, above all, the new perception of the neutrality principle, in view of the reclassification of the relationship between the parties, based on the continuity of fiscal values until now at the basis of all rules42.
Moreover, the ITC seems to be even more obsolete in light of the recent Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border corporate mergers.
f) Tonnage tax.
An area in which the 2003 reform brought about significant and positive changes in Italy concerns shipping companies and the need to increase their competitiveness in the light of the favourable regimes applied in third countries. This, despite the fact that this issue had already been raised by the Community back in 1989 and that the 1996 Community Communication and the subsequent «guidelines» of 1997 entitled «Community Guidelines43 on State Aid to Marine Transport»44, clarified the compatibility of aid and tax alleviations (whether in terms of rates or the calculation of the taxable base or the salaries of the seafarers) with the EC Treaty principles. Currently, however, an examination of the single Member State's tax tonnage systems reveals dissimilarities that take on the form of two different systems:
a. the tonnage-based corporation tax system, the method whereby derived income is calculated based on the net tonnage of the fleet (the so-called all-in-all-out principle45). This system was first introduced in the Netherlands46 and recently adopted in Italy, among others, with Articles 155-161 of the ITC (followed by the Ministerial Decree of 23 June 2005)47;
b. tonnage tax in the strict sense is a flat rate tax and is the earliest method introduced in Greece.
Given the dissimilarities, theoretically speaking, it would be quite difficult to provide an overall definition of tonnage tax at Community level (and then compare it to the Italian system). At most we could say that the Member States do not consider it a harmful tax competition measure and see it as a substitute tax on income deriving from marine activity, regardless of the effective costs and profits.
g) Other important innovations in Italy after the 2003 reform.
For the sake of completion, I shall briefly mention three other steps that the Italian legislator has taken in its recent efforts to bring Italian tax law into line with European principles.
Directive no 90/435/EEC on the taxation of dividends between parent companies and subsidiaries48, in the fifteen years in which it has been in force, has been a positive measure despite its narrow scope of application and its varied assimilation among Member States49. The need to introduce modifications50, already mentioned in the Ruding Report in 1992, has been considered a top priority of the Commission and has been included in its programme of activities for 2003-200651.
Within this context, I want to point out the Commission's proposal of 29 July 2003 and especially Directive 2003/123/EC52, which was brought into force on 1 January 2005. The amendments aim to:
i. broaden the scope of application of the directive to new company forms (cooperatives, insurance companies and private and public entities whose activity is wholly or principally commercial) and to the new EU company form «Societas Europea»53;
ii. reduce the minimum holding percentage from 25% to 10% as a requirement for taking advantage of the Directive54;
iii.extend the parent company/subsidiary regime also to dividends received by permanent establishments of parent companies resident in a different Member State (different also from the subsidiary's State of residence) in compliance with the ruling of the European Court of Justice in the Saint Gobain case55.
However, like a few other Member States, Italy failed to adopt the measures of Directive 2000/123 by the 1 January 2005 deadline resulting in the Community initiating an infraction procedure. Furthermore, it is widely held that more radical changes were in order - especially with regard to the current 5% deductibility limit on charges on shares in view of the recent stance taken by the European Court of Justice in the Bosal56 case and with regard to the anti-abuse clause allowing intragroup57 profits relief from the neutrality regime. Limited progress is also attributed to the fact that the unanimous voting method allows only for changes agreed on unanimously by all of the Member States58.
I want to underline another step towards harmonization made through two directives of 3 June 2003 - respectively, Directive 2003/48/EC on the taxation of savings income in the form of interest payments and Directive 2003/49/EC on the payment of interest and royalties made between associated companies of different Member States, both included in the measures envisaged under the «Monti package» and adopted in Italy.
With a view to avoid double taxation - countered only in part in bilateral conventions - and in harmony with the principle of the free movement of capital, Directive 2003/49/EC on intragroup interest and royalties from 1 January 2004 disallows withholding taxes on interest and royalties paid between associated
companies operating in different EU countries59. The Directive was adopted in Italy with Law no 306 of 31 October 2003 and was implemented with Legislative Decree no 143 of 30 May 2005 in compliance with EU rules60.
Directive 2003/48/EC on the taxation of savings income in the form of interest payments - adopted in Italy with Legislative Decree no 84 of 18 April 2 0 0561 - is aimed at doing away with any obstacles to the freedom of movement of capital as per Articles 56 and 58 of the EC Treaty62, in compliance with Directive 88/351/EEC and later proposals that tried to introduce a common withholding tax on interest (15%) and strengthen mutual aid among the tax authorities of the Member States.
Certain Member States were opposed to these proposals and the introduction of the common model, to the point that the Commission had to present a second proposal included in the measures envisaged in the «Monti package» (COM (98) 295 final). However, during the approval process, this proposal was also subject to numerous modifications so that the Commission had to once again present another proposal (COM (2001) 400 final). This last proposal was discussed and definitively agreed upon during the ECOFIN Council meeting of 3 June 2003, which adopted Directive 2003/48/EC on the same date. Directive 2003/48/EC concerns savings income in the form of interest payment made in one Member State to an individual resident in another Member State.
For the purpose of precluding any discrimination on foreign-source capital income with respect to domestic-source income - on which the European Court of Justice recently issued a negative ruling in the Lenz case - the objective proclaimed by the Directive is to guarantee a level of effective taxation on certain financial proceeds, prevalently interest, that is in accordance with the laws in force in the State of the recipient, as stated under Article 11 (4) - which allows the Member States of residence of the «beneficial owner» to tax the income in accordance with its national law - as well as under Article 16, which does not preclude Member States from applying other types of withholding taxes in accordance with their national laws or double tax treaties.
However, this objective is not achieved by harmonising the different tax regimes in force in Member States, but through the exchange of information among the competent authorities, which is particularly important in the prevention of fraud and abuse. Even in this delicate tax area, therefore, the Community is faced with the difficulty of espousing the objectives pursued by the EC Treaty with the differing regimes adopted in the Member States and in third countries. Indeed, many principles of the Directive are in fact compromises, until there is a complete revision of the tax capital market.
Indeed, one need only recall the derogations under Articles 10-13 in favour of Belgium, Luxembourg and Austria - giving these countries the possibility of applying a withholding tax instead of exchanging information - or the limited effectiveness of the Directive, which will not come into full force until certain third countries adopt specific measures contained in the agreement ratified by the ECOFIN Council on 12 April 2005.
( to be continued)
20
In general, on the juridical importance of tax harmonisation in EU law, see, among others, COSCIANI, Problemi fiscali del mercato comune, Milan, 1958, page 89; COSCIANI, La politics di armonizzazione fiscale della Comunita Europea, in Quaderni Assonime, Rome, 1982; FANTOZZI, Il sistema tributario italiano verso il mercato unico europeo, in Rass. trib., 1989, I, page 15; RUSSO-CORDEIRO GUERRA, L'armonizzazione fiscale nella comunita europea, in Rass. Trib., 1990, page 628; DE MITA, L'armonizzazione delle imposte dirette, in Dir. e prat. trib., 1991, I, page 54; UCKMAR, Progetti e possibili soluzioni dell'armonizzazione fiscale U.E., in Dir. e prat. trib., 1995, page 9; SACCHETTO, Armonizzazione fiscale nella Comunita Europea, in Enc. Giur. Treccani, II, Rome, 1994,1; CASADO OLLERO, L'ordinamento comunitario e l'ordinamento tributario interno, directed by AMATUCCI, in Tratt. di dir. trib., II, Padua, 1994, page 849; CNOSSEN, Tax harmonization in the European community, in Bulletin
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
for International Fiscal Documentation, 1986, page 545; CNOSSEN, Qual' il grado di armonizzazione nella Comunit Europea?, in Esperienze straniere e prospettive per l'ordinamento tributario italiano, Padua, 1989, page 105.
On this point, see CARUSO, Armonizzazione dei diritti e delle legislazioni nella Comunit Europea, in Enc. Giur., II revision, Milan, 1993, page 2, where further academic references can be found. Among the tax experts, see ADONNINO, Armonizzazione fiscale nell'Unione Europea, in Enc. del dir., II revision, Milan, 1999, page 276.
Among others, see PINDER, Positive integration and negative integration: some problems of economic union in the EC, in World Today, 1966, page 90; FICHERA, Fisco ed Unione Europea: l'acquis communautaire, in Riv. dir. fin., 2003, I, page 427.
On the meaning of this expression, see FANTOZZI, Non discriminazione e non restrizione: la «negative integration» nell'epoca dell'allargamento, speech delivered at the conference «I modelli impositivi comunitari nellEuropa allargata», held in Bologna, Italy on 24 and 25 September 2004; CIPOLLIINA, I confini giuridici del tempo presente. Il caso del diritto fiscale, Milan, 2003, page 50.
In this sense, for example, see GALLO, Giustizia sociale e giustizia fiscale tra decentramento e globalizzazione, in Riv. dir. trib., 2004, I, page 1069, which underscores the role of «co-ordination in tax systems as a European constitutional principle»; SACCHETTO, L'evoluzione del diritto comunitario in materia tributaria, op cit, page 812.
On this issue, refer to ADONNINO, La compatibilit della disciplina Ires con l'ordinamento comunitario, directed by PAPARELLA, in La riforma del regime fiscale delle imprese: lo stato di attuazione e le prospettive future, Milan, Giuffr, 2006, page 135. Recently amended by Legislative Decree no 247 of 18 November 2005.
On this point, see DI PIETRO, La tassazione dei non residenti ed i principi comunitari, in Riv. dir. trib., 2004, I, page 77; MAISTO, Profili internazionalistici dell'imposizione delle imprese nella delega per la riforma tributaria, in Riv. dir. trib., 2003, I, page 703.
Indeed, the problems caused by the tax credit method for the purpose of eliminating double taxation on company dividends are well-known, as shown in the recent ECJ ruling, Section V, 25 September 2003, case C-58/01, Oc van del Grinten NV, in Riv. dir. trib., 2004, III, page 123, with a note by VITALE, Corte di Giustizia, imposte dirette e i limiti della cd. «armonizzazione negativa». Also on this point, see the rulings Verkooijen and that of 7 September 2004, case C-319/02, in Riv. dir. trib., 2004, III, page 209, with a note by MACRELL, Tassazione dei dividendi: la recente sentenza della Corte di Giustizia delle Comunit Europee ed il principio di coerenza dei sistemi. In general, on the unsuitability of adopting the tax credit method in the EU as opposed to the exemption method, see VOGEL, Which method should the European Community adopt for the avoidance of double taxation?, in IBFD Bulletin, 1, 2002, page 4.
On this point, see RASI, La tassazione dei redditi societari in ambito UE: il nuovo modello italiano a confronto con i sistemi degli altri Paesi, in Rass. trib., 2004, page 1789. In-depth considerations and abundant academic references can be found in DELLA VALLE, Contributo allo studio della stabile organizzazione nel sistema di imposizione sul reddito, Rome, 2004, passim; LOVISOLO and FIORENTINO, I profili internazionali e comunitari della nuova imposta sui redditi delle societ, directed by MARINO, Milan, 2004, pages 35 and 69.
See FANTOZZI, La nuova misura di contrasto dello sfruttamento fiscale della capitalizzazione delle imprese; COMELLI, Sul contrasto all'utilizzo fiscale della sottocapitalizzazione; further academic references can be found in both ESPOSITO-PAPARELLA, La nuova imposta sul reddito delle societ, Naples, ESI, 2006, pages 95 and 223; LA ROSA, La capitalizzazione sottile, directed by PAPARELLA, in La riforma del regime fiscale delle imprese, op cit, page 122; and MARINO, Thin capitalization rule: profili internazionali e comunitari, directed by MARINO, in I profili internazionali e comunitari della nuova imposta sui redditi delle societ, op cit, page 79. In Rass. trib., 2003, page 2159, with a note by PIZZITOLA, as well as in Giur. trib., 2003, page 305, with a note by BARONE. For example, consult the OECD Report, Thin Capitalization: Taxation of Entertainers, Artists and Sportsmen of 26 November 1986.
On these aspects, see above all FANTOZZI, La nuova misura di contrasto dello sfruttamento fiscale della sottocapitalizzazione delle imprese, op cit, page 103. On this point, see MONTUORI, Dubbi di legittimit comunitaria della capitalizzazione sottile, in Dialoghi di dir. trib., 2005, page 1365; ARAMINI, Contrasto alla sottocapitalizzazione: profili di incompatibilit con il diritto comunitario e Modello OCSE, in Fiscalit Internazionale, 2004, page 33.
See STEVANATO-LUPI, La tassazione delle societ nella riforma fiscale, Milan, Il Sole 24Ore, 2004, pages 11 and 65; ZIZZO and BEGHIN, I profili internazionali e comunitari della nuova imposta sui redditi delle societ, op cit, directed by MARINO, pages 11 and 155; STEVANATO, Il consolidato fiscale nella delega per la riforma tributaria: profili problematici e prospettive di attuazione, in Rass. trib., 2002, page 1202; TINELLI, Il bilancio consolidato fiscale nazionale nella disciplina dell'Ires, in La riforma del regime fiscale delle imprese, op cit, directed by PAPARELLA, page 167; MICCINESI-DAMI, Il consolidato mondiale nella riforma del sistema fiscale statale, directed by ESPOSITO-PAPARELLA, in La nuova imposta sul reddito delle societ, op cit, page 49; GREGGI, La fiscalit deigruppi di societ:profili tributari e comparati, in Rass. trib., 2002, page 1953; BERGAMI, diretto da GARBARINO, I rapporti infragruppo tra riforma fiscale e sviluppi UE, in Aspetti internazionali della riforma fiscale, EGEA, 2004, page 377. For broad considerations on German consolidation, which seems to be the model that inspired the Italian legislator, see OEPEN, Tax reform 2000 - Tax reform and reduction of enterprise taxation, in European Taxation, 2000, page 483; KESTI, European tax handbook, Amsterdam, 2001, page 231.
In this regard, PAPARELLA, Brevi considerazioni sui limiti della legge delega relativa alla nuova imposta sul reddito delle societ in relazione al principio di armonizzazione nelle operazioni straordinarie, in Tributi Impresa, 2004.
In a similar sense, ZIZZO, Lo scambio di partecipazioni dalla riforma Visco alla riforma Tremonti, in Riv. dir. trib., 2003, I, page 575.
In support of this, allow us to refer again to our Riflessioni sulla nuova disciplina sostanziale della cessione di aziende, op cit, page 387. However, see also ZIZZO, Lo scambio di partecipazioni, op cit, page 558; SERBINI, Lo scambio di partecipazioni alla luce della normativa di attuazione della delega sulle operazioni di riorganizzazione societaria, in Il Fisco, 1997, page 13270; MANERA, Sulla neutralit del concambio di partecipazioni, in Dir. prat. trib., 2000, I, page 575; ROMITO, Scambio di partecipazioni: la nozione di «integrazione» di partecipazioni di controllo nelle operazioni intracomunitarie e nazionali, in Riv. dir. trib., 2000, I, page 803. The proposal was delivered to the European Parliament on 28 October 2004 and, after having received the unanimous opinion of the European Economic and Social Committee, became Council Directive 2005/19/EC of 17 February 2005 (in OJ L 58 of 4 March 2005).
For further references consult IBFD, Survey on the Societas Europea, September 2003.
See PAPARELLA, La disciplina delle operazioni straordinarie nella riforma del regime fiscale delle imprese, directed by PAPARELLA, in La riforma del regime fiscale delle imprese: lo stato di attuazione e le prime esperienze concrete, Milan, Giuffr, 2006, page 115.
See the Communication entitled Towards a new marittime strategy, delivered on 13 March 1996 to Parliament and Council (COM (96) 81). See the Commission document of 24 June 1997, COM (96) 81.
By virtue of a regressive model whereby coefficients are applied in descending order to ships with greater tonnage.
For further analysis, see KAGER-PRINSEN, Tax incentives for Netherlands-based marittime shipping enterprises reviewed in an international context, in Intertax, 1996, page 118.
On this issue, for an exhaustive comparative study, complete with bibliographical references, see PORPORA, La cosiddetta «tonnage tax». La prospettiva italiana e le esperienze a confronto, in Riv. dir. trib., 2005, IV, page 3; PUOTI, La fiscalit marittima nella Unione Europea: la prospettiva italiana anche alla luce della legge delega per la riforma del sistema tributario, in Riv. dir. trib. int., 2001, III, page 9; BASILAVECCHIA, La tonnage tax, in Corr. trib., 2002, page 4025; LOVISOLO, Tonnage tax all'italiana: prime considerazioni sulla bozza di decreto delegato, in Dir. prat. trib., 2003, I, page 452.
Among many others, see FANTOZZI, L'attuazione della direttiva CEE madre-figlia in Italia, confronto tra la direttiva CEE e la legge italiana di attuazione, in Riv. dir. trib., 1993, I, page 124; FEDELE, La direttiva «madre-figlia» e la disciplina attuativa come complesso normativo unitario e sistematico: i criteri interpretativi, in Rass. trib., 2001,
49 page 1263; TERRA-WATTEL, European tax law, III ed., Kluwer, London, 2001, page 228; MAISTO, Il regime tributario dei dividendi nei rapporti tra «societ madri» e «societ figlie», Milan, 1996, passim; GRECO, Tassazione dei dividendi e Direttiva CEE 90/435, in Rass. trib., Issue no 8 of 1993. A complete analysis of the state of EU Member States' adoption of the Parent-Subsidiary Directive can be found in BULGARELLI, Neutralit impositiva degli utili infragruppo, directed by DIPIETRO, in Lo stato della fiscalit nell'Unione europea, op cit, page 555.
50 Not by chance, in the Communication Towards an Internal Market without tax obstacles. A strategy for providing companies with a consolidated corporate tax base for their EU-wide activities, COM (2001) 582 of 23 October 2001, the Commission states that «the scope of the Parent- Subsidiary Directive (90/435) is too narrow and its implementation in Member States is very different, which reduces its effectiveness». In this same sense, see the document of the Commission headed Company taxation in the international market, SEC (2001) 1681 of 23 October 2001, which reads «the usefulness of the directive will be undermined by its relatively narrow scope».
51 As confirmation of this, see the Council proposal of 26 July 1993 amending Directive 90/4357EEC of 23 July 1990, COM (93) 293 final, in OJ C 225 of 20 August 1993, page 5.
52 In this regard, see Commission Communication International Market Strategy. Priority 2003-2006, COM (2003) 238 final of 7 May 2003.
53 In OJ L 7 of 13 January 2004. For exhaustive commentary on the new Community Directive approved by ECOFIN on 23 December 2003, see BULGARELLI, Le recenti modifiche alla Direttiva «madre-figlia» e la riforma tributaria italiana, in Rass. trib., 2005, page 115, where further academic references can be found; ROLLE, La nuova disciplina comunitaria di dividendi, interessi e royalties infragruppo e le interferenze con la riforma fiscale, op cit, directed by GARBARINO, in Aspetti internazionali della riforma fiscale, page 405.
54 Introduced by Council Regulation no 2001/2157/EEC of 8 October 2001, establishing the Statute for a European company (SE) in OJ L 294 of 10 November 2001, page 1. As per Article 3 of the Directive, indeed, the minimum holding percentage will go from 20% to 15% from 1 January 2007 and subsequently 10% from 1 January 2009.
55 See ECJ ruling of 21 September 1999, case C-307/97, in Raccolta, 1999, I, page 6161; in Dir. prat. trib., 2000, III, page 315, with a note by GARBARINO, Ilprincipio di non discriminazione tra societ residenti e stabili organizzazioni. See also ROMANO, La stabile organizzazione si avvicina ai soggetti residenti nel diritto tributario internazionale di origine convenzionale: il caso Saint Gobain, in Boll. trib., 2000, page 328. However, an analogous stance was previously taken in ECJ ruling of 28 January 1986, case C-270/83, in ECR, 1986, page 273.
56 Commentary on ECJ ruling, Section V, 18 September 2003, case C-168/01 can be found in Rass. trib., 2004, page 323, with extended commentary by PIRI, Direttiva madre-figlia e limiti nazionali alla deducibilit dei costi di partecipazione: il caso Bosal; in Riv. giur. trib., 2004, page 105, with a note by BARONE, La Direttiva madre-figlia interpretata alla luce della libert di stabilimento; and in Il Fisco, 2003, page 17188. See also WEBER, The Bosal Holding Case: analysis and critique, in EC Tax Review, 2003, page 220.
57 On this point, see in particular, MARINI, Le clausole anti-abuso ed i limiti all'applicazione della Direttiva madre-figlia. Le ragioni comunitarie e le esperienze nazionali, directed by DI PIETRO, in Lo stato della fiscalit nell'Unione Europea, op cit, II, page 599.
58 As confirmed by the observations of BULGARELLI, Le recenti modifiche alla Direttiva «madre-figlia», op cit, page 118; BROKELIND, The proposed amendments to the parent-subsidiary Directive: some progress?, in European Taxation, IBFD, Amsterdam, December 2003, page 451.
59 Refer to GREGGI, La Direttiva 2003/49/CE e il regime di tassazione degli interessi e delle royalties, in Rass. trib., 2004, page 505; GRILLI, La direttiva sugli interessi e sulle royalties infra-gruppo, in Dir. prat. trib. int., 2005, page 46; BOIDI-FUSA, Il trattamento degli interessi e delle royalties all'interno dell'Unione Europea, in Il Fisco, 2005,1, page 12352; DE CAPITANI-COMUZZI, La Direttiva n. 2003/49/CEE in tema di interessi e royalties, in Il Fisco, 2003, 1, page 12084.
60 For further clarifications, see Italian Inland Revenue Circular no 47/E of 2 November 2005, in Boll. trib., 2005, page 1647.
61 In this regard see Circular no 557E of 30 December 2005, in Il Fisco, 2006, 2, page 606.
62 For an exhaustive recount of the evolution of the European Community, see CERIANI, Tendenze internazionali nella tassazione del risparmio, in Rass. trib., 2004, page 137; AMATUCCI, Norme anti-elusive, libero accesso al mercato e tassazione dei capitali in ambito Ue, in Riv. dir. trib., 2005, I, page 103; GIORGI, La libera circolazione dei capitali, op cit, page 1366.
63 For example, see Council Directive Proposal COM (89) 60 final, as well as Council Directive no 88/361/EEC of 1989 (in Riv. dir. fin., 1989, II, page 357) on the establishment of a common system of withholding tax on interest income. See also STEFANI, La liberalizzazione dei movimenti di capitali nella CEE e rischi di distorsioni ed evasioni fiscali, in Boll. trib., 1989, page 1445.
64 In OJ L 157 of 26 June 2003. For further analysis on the Directive, see BELL, EU Directive on the taxation of savings income, in British Tax Review, 2003, page 475; PASTORIZA VASQUEZ, La nuova direttiva sulla tassazione del risparmio: applicabilit ed efficacia, in Rass. trib., 2005, page 1094; MIGNARRI, La definitiva approvazione della Direttiva comunitaria sulla fiscalit del risparmio: le norme ed i riflessi operativi in Italia, in Il Fisco, 2003, page 5318; IDEM, L'attuazione in Italia della Direttiva sul risparmio transfrontaliero dopo i chiarimenti forniti dall'Agenzia delle Entrate con la Circolare n. 55/E of 30 December2003, in Il Fisco, 2006, 1, page 4894; DE CAPITANI-COMUZZI, La Direttiva n. 2003/49/CEE in tema di interessi e royalties, in Il Fisco, 2003, page 12084.
65 See ECJ ruling, Section I, 15 July 2004, case C-315/02, in Riv. dir. trib., 2004, III, page 235, with a note by CONCI, La discriminazione fiscale nel trattamento dei dividendi di fonte estera ai fini dell'imposizione reddituale.
66 On the controversial notion of «beneficial owner» at Community level and on the co-ordination problems of the same concept codified at international level, among many others, see BAGNARDI, Il concetto di beneficiario effettivo nella Direttiva sulla tassazione del risparmio, in Dir. prat. trib. int., 2003, page 185; PERRONE, Brevi note sul significato convenzionale di beneficiario effettivo, in Rass. trib., 2003, page 151.
67 Point 4 of the «whereas» of Directive no 49/03 clearly states «The abolition of taxation on interest and royalty payments in the Member State where they arise, whether collected by deduction at source or by assessment, is the most appropriate means of eliminating the aforementioned formalities and problems and of ensuring the equality of tax treatment as between national and cross-border transactions».
68 Among others, refer to WINCKLER, Tax harmonization and financial liberation in Europe, New York, 1992, passim.
69 For example, Switzerland, the Principality of Monaco, The Principality of Liechtenstein, the Republic of San Marino, the Principality of Andorra.
