ITALIAN NATIONAL REPORTS - Università Degli Studi Di Palermo

Carlo Garbarino
Comparative Regulation of Corporate Tax Avoidance
When a special Task Force (“Comitato Consultivo”) had been assembled in
order to issue preliminary rulings at the request of the taxpayer on the tax
avoiding nature of a transaction, a rather wide inventory of cases layered, so that
a line of reasoning akin to that of an “analysis of precedents” developed among
taxpayers. However, such an analysis could only function as a rule of thumb and
was better suited at defining what could never pass by before the Task Force
rather than an analysis aimed at defining what kind of transactions could in no
case be considered as tax avoiding, that is, what kind of “safe harbors” could be
foreseen.
In the Italian experience, referring to “safe harbors” is slightly inappropriate,
as similar phenomena have mostly to do with the objective scope of application
of the G.A.A.R.. There is however one notable exception in this respect; namely,
based on Para. 3 of Art. 176 of the I.T.C., deeds of conferral of going concern
carried out by paying a step up substitute tax or by maintaining the tax values of
the assets conferred unchanged, followed by a transfer of the acquired
participation, so to benefit from the participation exemption regime set forth by
Art. 87 I.T.C. are never considered as tax – avoiding transactions. Such case,
justified on the grounds of reasons of coherence of the tax legal system, is
peculiar because if it were not for the open exclusion of Para. 3 of Art. 176 of the
I.T.C., this kind of transaction would wholly fall within the scope of application
of Art. 37 – bis of Presidential Decree No. 600/1973.
Another aspect to be underlined is that, the “purposive scheme” is almost
always central to the detection of a tax avoiding scheme; in this respect, an
isolated transaction, such as for instance, a single merger, a single division, a
single conferral is almost never considered as sufficing to lead to avoidance of
taxes.
The same applies, symmetrically, to the existence of categories of
transactions subject to a more in depth scrutiny. The Italian G.A.A.R. has a
specific (although broad) scope of application from an objective point of view
and applies only with respect to a specific number of transactions. Nonetheless,
it is clear that, depending on the historical phase, Tax Authorities have been
more aggressive on tackling specific tax avoiding schemes at the expense of other
from drawing lesser attention.
Besides Art. 37 – bis of Presidential Decree No. 600/1973, another fully
fledged anti-avoidance special rule refers to cases of “fictitious interposition” which
are dealt with under Art. 37 of Presidential Decree No. 600/1973. According to
this provision, on the grounds of serious, circumstantiated and consistent
presumptions, it can be demonstrated that a person is the beneficial owner of