"NEWS April 27, 2016-companies: only if not engaged"

Posted by on Apr 27, 2016

New Jolt from the case-law of merit in terms of shell company.

After an initial lightning come from the CTR of Milan (486 ruling of 1/26/2016), Florentine courts also settle a further "stab" the whole system of the law 742/1994 (CTR Florence, 15 3-512 of judgment — 2016).

In either case we found a common trait, which falls and ignores additional questions related to specific procedural events do not have to "bother" the regime of (for lack of income or for reiteration of tax losses) whenever the performance of non-legally a dummy header property, Carty attributable to company me in reality used by members.

These conclusions would be enough to make perfectly acceptable (as low hazard) a system that makes water on all fronts.

The irrationality of the regime, in fact, can be explained as follows:

  • on one side is technically unacceptable because a demand for production of a minimum amount of revenue is still being founded (after decades of application) on mathematical parameters irrelevant to those normally applicable on the market today;
  • on the other hand, attaches itself to a pathological flavor recurrence of tax losses, omitting the fundamental consideration that the same could be the result of poor management or a widespread market crisis;
  • Finally, it uses the too easy "shortcuts" granted to the Italian tax authorities on the subject of investigation, giving character of violation to mere circumstances that could be well explained. Moreover, despite the tax authorities have the necessary tools and the support of a law that does not always seem balanced and timely (just evoke the similar case of sector studies, where we had to wait until the year 2009 to find that simple mathematical calculations can hardly – – constitute the backbone and the motivation of a notice of assessment), flips on the taxpayer to prove the correctness of your position.

That being said, it welcomes the consolidation of a legal address that, above all else, questions the purpose of the tool: because the regime was introduced way back in 1994? Perhaps, answering this question might apply more efficiently the regulatory provisions, and found that the legislature's intention was to thwart (rightly) the widespread habit of putting assets in society (of convenience), continuing to maintain the enjoyment. In that case, we all agree that we should not give any protection to such situations, but simply attack the company with censorship uneconomic behaviour to punish those who are off course.

Exploiting such arguments, in the case of the CTR of Florence has simply seen (italics not literal) that the applicant does not seem to qualify as a shell company as is apparent from the documents submitted that it conducts business with administrative permissions, with presence in which shall be entered the names of foreign tourists and Italians who attended the structure with employees. These indicators (and we like a lot), rule out that the company was created for evasive and/or elusive.

In the case of the judgment in Milan, however, States that "about the infringement and misapplication of article. 30, 724/1994 law, in addition to the above that the company has proven to have played an actual economic activity, that there was as an instrument to ensure tax advantages to their members and that the adequacy of rents was not rebutted rightly and probatamente from the Office. OMI parameters relate to homes, offices, warehouses, so cannot be used with reference to the buildings leased by the company. Furthermore, with reference to the present case, there is, in many cases there are tenancies and often the renter is not available to pay fees higher than those contractually agreed originally, without any economic reason. Therefore the contested decision in part by the company's appeal is unlawful and introductory must be accepted. "

Given that the theme of the system of companies seems to be on the agenda of the legislature for a major overhaul (obviously to fillet with coverage needs), confides that account be taken of this evolving case-law and, especially, of the condition for which there is nothing intuitive, logical and as normally happens, the fact that the presence of an asset should generate – Perforce – a certain amount of revenue. The "abnormality" of the principle is even more obvious when one considers that the test of operation is performed on book value, with the result that (for example) a property with same characteristics requires more or less revenue depending on when it was purchased and the price that was paid (maybe except that comes only from the circumstance that a purchased to VAT – with tax deductible – and the other to register with sets by cumulating at the value of fixed assets).

The times seem to be mature, the opportunity seems to be present and current: we keep our fingers crossed and we continue to hope that, on the one hand, the problem at the root and, in the meantime, the law strengthens the orientation here reported.