"NEWS May 16, 2016-documentation for the patent box of SMEs"

Posted by Segreteria on May 16, 2016

Euroconference Newshttp://www.ecnews.it

Persons who have exercised the option for the patent box for 2015 relative to the direct use of intangible goods subsidized (hereinafter also referred to as "goods" or "subsidized goods") must now submit its documentation.

You summarize, for the record, the terms and conditions of presentation, with special reference to small and medium-sized enterprises (SMEs).

It is recalled that, in accordance with article 39, paragraph 1, of law No. 190/2014, in case of direct use of assets its economic contribution (partly detassabile) should be determined on the basis of a prior agreement with the tax authorities (to activate and manage through a special procedure of ruling).

As ruled by Decree of the 7/30/2015 and the 11/10/2015 and 12/1/2015 measures, for 2015 (for subjects with period coinciding with the calendar year) the option for the patent box had to be exercised within the 12/31/2015 (using the appropriate model to be transmitted electronically) and efficacy, direct use of assets provided that was presented the instance of ruling.

The instance of the ruling was to be submitted to the Office by 12/31/2015 advance arrangements and international disputes of the Inland Revenue, Central Directorate for investigation, International Sector (alternately and interchangeably with the see of Rome or Milan) by registered letter with return receipt or delivering it directly to the Office.

As stated by article 3 of decision of the 12/1/2015, the instance of ruling made by micro, small and medium-sized enterprises (SMEs) as defined in article 1 of the decision, must now be accompanied by the documentation necessary to:

• Locate analytically intangibles from whose work directly stems the production of share of income aid must;
• indicate in detail the constraint of subsidised goods, if any, between complementarity work together, as a single intangible asset, for the purposes of the facility as part of the implementation of a product or process (remember, that with the stability law 2016 clarified that the constraint of complementarity may also include different types of assets work together, this also apply to the 2015 as stated in the circular No. 11/E/2016);
• provide a clear description of the research and development activities carried out and of the direct connection with the development, maintenance and enhancement of the value of the goods.

SMEs are not obliged, in contrast to large companies, representing the methods and the calculation criteria of the economic contribution of goods subsidized and the reasons why those methods and criteria were selected.

If not represented, the aforementioned methods and criteria are defined in discussion with the Office during the next procedure by prior agreement.

As far as established, fully operational, under article 6 of the Decree of 12/1/2015, the above documentation may be submitted or integrated within 120 days from the presentation of the petition of ruling, together with additional submissions in order to illustrate and complement the instance.

By way of derogation from this provision and on a transitional basis, by decision of the 3/23/2016, the deadline was fixed at 150 days (instead of 120) from the presentation of the petition of ruling, limited to applications brought in the period between the date of publication of the measure of the 12/1/2015 (published on the website of the IRS the day 12/1/15) and the 3/31/2016.

So for example, if the instance has been lodged on December 22, 2015, supplementary documentation must be submitted by May 20, 2016.

By mistake, in the first version of circular No. 11/E/2016, the term had been shown in 180 days. The Inland Revenue has then replaced the circular by returning the correct term (150 days) and giving notice with press release of 4/22/2016.

Documentation and additional submissions should be addressed to the Office by registered Mail or with direct delivery.

By decision of the 5/6/2016, have been dealt the skills for managing instances of ruling and related documentation.

As a result of this measure, regardless of the Office to which you sent the instance of ruling, supplementary documentation (if submitted after the 5/6/2016) must be sent to the regional offices and Provincial Directorates of Trento and Bolzano, within the territory of which the interested parties were resident at the date of presentation of the petition of ruling.

Keep in mind that the subjects with a turnover equal to or higher than euro 300,000,000.00 (as indicated in the final declaration made before sending the instance of ruling) must submit supplementary statement to the Office advance arrangements and international disputes of the Inland Revenue, Central Directorate for investigation, International Sector.

Article 2 decision 12/1/2015 requires, in addition, the production in electronic form of the copy of the application and of the documentation supplied (to produce supplementary documentation, as per the Revenue Agency press release 12/22/2015).

To highlight that, as stated in the circular No. 11/E/2016, failing to report the instance of ruling by 12/31/2015 or failure to present the documentation in the term held determines failure effectiveness of option, without any consequences for the taxpayer (with the possibility to opt from scratch in subsequent years for a period of five years after the new option).

As for the documentation, you should also consider that given in circular No. 11/E/2016 about the documentary evidence to be transmitted to the Inland Revenue in relation to the requirements of subsidized goods.

Although the circular does not specify when such documentation must be transmitted, you feel that it should be part of the documentation to be sent in 150 days.

In particular, we note the need to produce:

• for software, a replacement Declaration (formerly DPR 445/200) certifying the ownership of exclusive rights over it (specifying the store hence the purchase if a title derivative), as well as the existence of protection requirements, originality and creativity that they identify as intellectual work, with a description of the computer program that can be accompanied by a copy of the program on non-editable disc;
• for patents, receipt of filing (for those "pending") and the mention of the grant certificate (for those granted), as well as the references of any databases from which you can infer such information or extract the documents;
• for brands, the receipt of filing (for those "pending") and the certificate of deposit first or last renewal certificate (for those registered), as well as the references of any databases from which you can infer such information or extract the documents;
• for designs to be registered or recorded, the receipt of filing (for those "pending") and the registration certificate (for those registered), as well as the references of any databases from which you can infer such information or extract the documents;
• for Community designs "with registration requirements", a replacement Declaration (formerly DPR 445/2000) certifying the ownership of exclusive rights on them (specifying the store hence the purchase if a title derivative), the existence of the respective protection requirements and the time and the event in which they were disclosed to the public for the first time in the community;
• for industrial designs that are creative and artistic value in itself, a replacement Declaration (formerly DPR 445/2000) certifying the ownership of exclusive rights on them (specifying the store hence the purchase if a title derivative), the existence of the respective protection requirements and the author's name and, if it is not, the date of his death;
• for corporate information and technical-industrial experiences legally protectable, a replacement Declaration (formerly DPR 445/2000) attesting to their lawful detention (specifying the store hence the purchase if a title derivative) and the existence of the requirements of protection.

With respect to that last category (information and experience), the circular States that the substitute declaration must also contain:

• the description of the information or experiences sufficiently to their identification and reference to any related documentary sources (internal and external to the company) useful identification;
• certification that the information or experiences are not collectively or in the precise configuration and combination of their elements generally known or easily accessible to experts (including the subject) and professionals (pointing to the sector), with an indication of the reasons supporting this conclusion;
• certification that the possession of such information or experiences under secret has economic value, indicating the reasons supporting this claim;
• the proof of the practical measures to guarantee the effective confidentiality of information, describing the secrecy measures taken and the reasons for its adequacy with respect to circumstances.

In General, circular No. 11/E/2016 warns that the documentation must make it possible to reconstruct in detail the income aid must.

It is also reported that, at this time, there must be submitted no documentation for the purpose of determining the nexus ratio.