"NEWS June 8, 2016-Voluntary disclosure: withdrawals and dividends in chiaroscuro"

Posted by on Jun 8, 2016

Waiting for the previews on the imminent reopening of voluntary disclosure are official confirmation, you can draw up a first budget, albeit partial, on procedures established or under way with offices.

The feeling is that in the second half of the year, given that the acts must be notified by the end of this year, there will be a strong accelerated disposal of financial administration practices, primarily, it seems to have mainly concentrated on less complex procedures.

Despite certain problems (see http://www.ecnews.it/fisco-work/voluntary-before-new-issue-better-clarify-uncertainties) in principle it can be said that the approach of the offices, though not always uniform, is marked by a certain openness and collaboration as it should be in a complex procedure such as that of voluntary disclosure.

Among the issues on which we have differences of opinion on the part of several offices include those related to withdrawals and hidden dividends distributed by companies in restricted basis.

Under the first profile, usually the offices in the presence of withdrawals is not particularly relevant to the amounts and timing of performing, to relate also to the amount of capital subject to regularization, tend to "settle" than allegedly wrote in the accompanying report as to its justification. In the absence of timely support patches, usually specified be withdrawals used for personal and/or family of the taxpayer and not intended in any way to be more assets abroad.

In some cases, especially when the amounts are more significant magnitude ask offices, in the absence of other relevant documentation, at the very least a self-certification by the taxpayer stating the use of monies. It is possible, for example, that they have been used to make donations in favour of children. In such cases, on the one hand, the Office is in some ways "reassured", at least formally, and, on the other hand, the taxpayer has no way to define its position without "bogged down" in an analytical test in most cases impossible to provide. It is clear that the taxpayer in making the self-certification must be especially careful since if contrary evidence emerge (think of the "whistleblowing" in the opposite direction made under the voluntary disclosure by the third party who actually received those monies) is simply opening the doors of the criminal in the first place and, of course, would be called into question the strength of the whole of the voluntary disclosure.

In view of this, it is hoped that the offices while facing substantial withdrawals show themselves sufficiently flexible by accepting, in the absence of contrary evidence based clues or better yet, with a certain elasticity, as stated by the taxpayer.

Obviously, from the point of view of tax recovery, is more delicate the position of those subjects, like entrepreneurs, who, in the absence of rebutting evidence on time, they run the real risk of being recovered to taxation the levy (the light in the substance of the presumption under article 32 P.r.decree 600/1973). Even then, however, the procedure should remain firmly standing, except that the Office does not have in hand the evidence to show the fraudulent reticence or, worse, the falsity of the statement made by the taxpayer.

Another aspect where there are different approaches on the part of Offices is that of hidden taxation of dividends paid by corporations to participatory base restricted (typically family company). Certain offices apply the taxation by the Member before Ires paid by the company as part of its voluntary national, while others tax dividend NET (in this sense, it is indicated that some responses made in his time DRE Lombardy in the framework of the Observatory on the voluntary set up by professional associations). The ultimate solution, however, seems more acceptable in view of the fact that ultimately the Ires paid by the company (non-deductible for tax purposes as related interest and penalties) translates into less useful and therefore less future dividend for the firm. Taxing the shareholder on the gross dividend, in fact, would give rise to a double taxation, not allowable under article 163 Tuir. On this point, however, it would be desirable to adopt a position at central level by the IRS, so also by speeding up the pending expiry of contradictory 31.12.2016 which is fast approaching.

by Nicola Fasano