A government decree, implementing the delegation on tax reform, changes the rules on inheritance and gift tax. The art. 1 of the draft decree aims to rationalize the provisions relating to the tax on inheritances and donations, intervening among other things with the aim of better defining the scope of application of these taxes (for example expressly excluding the taxation of donations use) and some cases and introducing the principle of self-assessment of inheritance tax. In any case, the rates and exemptions currently in force remain unchanged.
Company transfers and share sales
We intervene, with a more precise regulatory definition, in the matter of transfers due to death and by donation (also through family agreements) of companies and shareholdings in favor of the spouse and descendants.
It is specified, in particular, that the transfer in favor of descendants and spouses of corporate shares and shares of joint-stock companies and cooperative companies is not subject to tax when, as a result of the transfer, legal control of the company is acquired (according to as provided by the Civil Code) or the existing control is integrated.
The transfer is not subject to inheritance and gift tax (THE) in case of companies or branches thereof, provided that the assignees continue to carry out the business activity for a period of no less than five years from the date of transfer; (II) in case of company shares or shares of joint-stock companiesprovided that the assignees hold control of the company for a period of no less than 5 years from the date of the transfer; (III) in case of other membership feesprovided that the assignees hold ownership of the transferred right for a period of no less than five years from the date of transfer.
At the same time as submitting the declaration of succession or the deed of donation or the family agreement, the assignees must make a specific declaration of commitment to the continuation of the business or to holding control or maintaining ownership of the right.
Failure to comply with the conditions indicated above will result in the forfeiture of the benefit. The benefit also applies to transfers of company shares and shares of companies resident in countries belonging to the European Union or the European Economic Area or which guarantee an adequate exchange of information, in compliance with the same conditions envisaged for the transfers of shares and shares of companies resident in Italy.
What changes for trusts
The draft legislative decree intervenes with the aim of rationalizing the fiscal discipline of trust within the scope of inheritance and gift tax, defining the rules of territoriality and specifying that i trustand other destination constraints, are relevant for the purposes of the aforementioned taxes as they are suitable for determining the transfer of assets and rights in favor of the beneficiaries. In essence, the draft legislative decree confirms the principle, now consolidated in jurisprudence and endorsed by the Revenue Agency in Circular no. 34/E of 2022, of the “outgoing” taxation of the transfer of assets from the trustee to the beneficiaries, generally recognizing the fiscal neutrality of the initial endowment deed.
As regards the applicable tax exemptions and rates, the value of the assets and the marital or kinship relationship between the settlor and beneficiary at the time of the transfer must be taken into account.
The possibility for the settlor, or for the trustee (in case of trust testamentary), to voluntarily advance the payment of the tax at the moment of the contribution of the assets or the opening of the succession.
In this case, the taxable base, as well as the applicable exemptions and rates, are determined with reference to the value of the assets and rights and the relationship between the settlor and beneficiary resulting at the time of the contribution or the opening of the succession. If the settlor or trustee in the case of a testamentary trust has opted for advance payment of the tax, subsequent transfers to the beneficiaries will not be subject to tax nor will there be refunds.
The tax base
For the purposes of determining the taxable base of the inheritance tax, the provision which provides for the application of the so-called is expressly repealed. jumble between donatum And remnantalready considered by jurisprudence and by the Revenue Agency to be incompatible with the current taxation system.
Self-assessment of tax and inheritance declaration
The principle of self-assessment – already envisaged for mortgage, land registry, stamp duty and mortgage taxes – by the taxpayer is also extended to inheritance tax.
The provisions relating to the procedure for liquidation and payment of inheritance tax are modified accordingly.
More precisely, it is envisaged, among other things, that (also) this last tax is paid, on the basis of the declaration, directly by the subjects obliged to pay. The relevant payment must be made within 90 days from the deadline for submitting the declaration, with the possibility of installments (making the payment within the aforementioned deadline in the amount of 20% and in quarterly installments, in a maximum number of 12, the remaining amount, providing appropriate communication in the declaration). The regularity of the self-assessment is subsequently checked by the office. The powers of assessment and rectification remain unaffected.
The rules relating to the succession declaration are also modified with a view to rationalization and simplification, not only to take into account the self-assessment of the taxpayer, but also to adapt the provisions, for example, to the electronic methods of presentation and reduce the information and documents to attach.
Changes to stamp duty rules
The art. 2 makes changes to the consolidated text of the registration tax with the aim of rationalizing and simplifying the regulation of the tax, also by extending self-assessment and strengthening telematic obligations.
Among the rationalization interventions that concern some tax cases, the following are worth mentioning:
Payment of registration tax
For the payment of the registration tax, the provisions already provided for notarial deeds remain unchanged. For other documents produced for registration, self-liquidation is introduced by the parties obliged to pay, subject to subsequent control by the office.
This guide is edited by the tax sector studies office of the National Council of Notaries on the innovations introduced by the consolidated law on donations and inheritances. For Corriere della Sera, the notary experts interpreted the scheme of the Legislative Decree «Rationalization of the registration tax, inheritance and gift tax, stamp duty and other indirect taxes other than VAT» identifying and interpreting new features , changes and additions to the new regulatory text.
