"NEWS April 29, 2016-switching to flat rate is a complimentary eviction regime"

Posted by on Apr 29, 2016

The title is certainly effect and does not want to be an invitation to daring operations at the edge of the abuse of rights, of which each would assume responsibilities; the goal is to report as the location that the Agency has recently taken in the circular 10/April 4, 2016 and, in terms of taxation of capital gains under the flat rate system, has a flaw that threatens to subtract taxable taxable forts.

The capital gain in the flat-rate scheme

The theme that we must focus is that relating to taxation or otherwise of any capital gains achieved by a taxpayer who decides to opt for the flat-rate scheme introduced by law 190/2014 and, more recently, “relaunched” by law 209/2015.

As it known scheme is based on adoption costs, applying certain profitability ratios to revenues/royalties collected.

The rules of application of preferential arrangements have been commented by the Agency in the circular 10/E/2016, reserving the issue of income from the sale of a capital good consequences a step up in section 4.3.1, which shows the text: “paragraph 64 referred to the preceding paragraph does not contain no reference to the tax treatment of capital gains and capital losses-at whose liability was Instead, expressly provided for in the former regimes dedicated to smaller taxpayers by article 1, paragraph 104 of law No. 244 of 2007.

The change in the letter of the law, with a view to greater simplification, to suggest that the capital gains and losses realized made during fiscal regime have no relief, although relating to goods bought in the years that preceded the adoption of the flat-rate scheme. Also, do not become significant both active and passive nor contingent. “

It then set out a complete irrelevance of plus and minus achieved under the flat-rate scheme, applicable (and this is the crucial point) to goods purchased before entering the scheme, when they were transferred in Konstanz. The location is certainly in line with the normative text (which does not regulate that particular income approach), but surprising as the Agency does not have a baseline of protection for reasons to State revenue, disregarding any hypothesis of differentiation of the treatment of goods acquired before entering the scheme.

Maybe you haven’t felt this need as a result of the fact that these taxpayers, according to the letter. c) of article 54 l. 190/2014, are obliged to have a limited amount of capital equipment (not more than € 20,000), and therefore also the capital appreciation in the sale would be accordingly modest.

On the other hand, we must not forget that in that ceiling should not be computed property, with the result that a taxpayer who is accessing the scheme could bring with it a significant real estate included in the perimeter of the enterprise.

The flat rate with real estate

Think of the case of a sole proprietorship that has one or more properties almost fully amortized (the laboratory of the artisan, the merchant’s shop, etc.): If this taxpayer was in a position to cease the activity should be noted the gain on the sale to a third party (or consumption, as fiscally similar assumptions) of the property. If these comply with the parameters to access the flat rate system and subsequently provided to assign or remove the property should not detect any appreciation.

Obviously, it is a situation that could be addressed by the tax authority pursuant to article 10-bis Law 212/2000, in case there were economic reasons not marginals justify the operation.

But some entrepreneur, about to cease trading, it could come to the idea of continuing the activities in “setback” for some time, in order to, first, get off within the parameters necessary for the access of the regime (reducing revenues, get rid of part of the capital goods furniture, lay off any employees, etc.) and then access it and then dispose of the property. A medium-term planning which would be rewarded by the exemption from taxation of capital gains which in some cases may be substantial.

Moreover, the most paradoxical aspect, lies in the fact that such an indirect benefit of the flat-rate scheme turns out to have a perimeter of application even greater than the expected ouster Institute facilitated by law 208/2015, which is applicable only to buildings (by nature or by destination); exemption from capital gains in the flat-rate scheme apply to all good, so, for example, even the buildings heritage.

I think everyone will share how this implicit benefit of moving to the flat-rate scheme is devoid of any ratio, but this is the undeniable outcome of the wording of the standard and interpretive position expressed in circular 10/E/2016.

Fabio Garrini