The importance of tax losses and lower values of the members of the situation in light of the innovations introduced by the 2008
With the entry into force of the budget for 2008,
the relevant legislation dating back to Legislative Decree 344/2003,
the application of IRES,
has undergone major changes with regard to depreciation and lower values of listed securities held in the conduct of business,
becoming a fundamental distinction between entities that apply IAS /
IFRS and entities which continue to apply national accounting standards.
Hence the need to make a stock,
from the rules subsequent to the aforementioned Decree No. 344/2003.
Framework after the entry into force of Decree No. 344/2003
The distinction between financial instruments constituting financial assets and financial instruments constitute current assets identified in the letters c), d) and e) of paragraph 1 of Article 85 of Tuir, is contained in the following third paragraph, který – before its amendment by ‘Article 1, paragraph 58, letter b) of Law 244/2007 – provided that, for the purposes of income tax, those values were not financial assets if they were not registered as such in the budget.
As a result of regulatory change, the general rule is that the goods referred to in letters c), d) and e) are financial assets if they are entered as such in the budget.
In short, what takes sole relevant for tax purposes is the mere formal criterion of inclusion in the budget as financial assets.
Non-deductibility of tax losses and lower values for shares and financial instruments similar to shares
With the entry into force of IRES in 2004, the general prohibition occurred – under the combined provisions of Articles 110, paragraph 1, letter d), 101, paragraph 2, a 94, paragraph 4, of Tuir – to include losses and lower values with significant tax on investments and financial instruments similar to shares, which represent financial assets or not, was partly offset by the provision – which in conjunction with Article 101, paragraph 2, a 94, paragraph 4, TUIR – the importance of tax losses recorded on bonds and similar securities which are financial assets and values of children enrolled on bonds and similar securities that are not financial assets.
No significant fiscal assumes the fact that taxpayers are subject to international accounting standards or not.
Tax deductibility of capital losses on bonds and other securities included in series or in mass
Under Article 101, paragraph 2, “for the valuation of assets listed in Article 85, paragraph 1, letter e), which are financial assets, the provisions of Article 94, but for the securities traded in Italian regulated markets and foreign capital losses are deductible to an extent not exceeding the difference between the tax value and recognized as determined by the price average for the last six months. ”
In turn, paragraph 4 of Article 94 of Tuir provides that the determination of the minimum value under Article 92, paragraph 5, shall be made in securities not traded on regulated markets, according to Article 9, paragraph 4 C), which provides that the normal value is determined by comparing the normal value of securities with similar characteristics traded on Italian regulated markets or foreign, failing that, under other elements can be determined objectively.
For the purposes of the exact identification of the goods being valued, Article 85, paragraph 1, letter e), refers to bonds and other securities in different series or mass
by the shares of equity, whether or not represented by certificates, the capital of companies and institutions mentioned in Article 73
financial instruments similar to actions under Article 44, issued by companies and institutions mentioned in Article 73.
It is not necessary that the bonds and other securities in series or mass fall between goods whose trade is the direct business activities.
From what has been said it follows that losses on bonds and other securities included in series or in mass become significant tax.
It also refers to Article 110, paragraph 1, letter c) of Tuir on capital gains on assets stated in Article 85, paragraph 1, letter e), which become significant tax. však, for goods which are financial assets, capital gains included not a component of income for the excess capital losses deducted.
Tax deductibility of child entries for bonds and other securities in series or in mass
For the evaluation of bonds and similar securities, which are not financial assets, paragraph 1 of Article 94 refers to the evaluation criteria in Article 92, except as provided in paragraphs.
Paragraph 4 of Article 94 states that the determination of the minimum value, under Article 92, paragraph 5, must be:
for securities traded on regulated markets, according to prices on the last day of the year or in accordance with the arithmetic average of prices recorded last month (does not apply in any case Article 109, paragraph 4, b) second period, repealed with effect from 1 Leden 2008)
for other securities, in accordance with Article 9, paragraph 4, letter c), which provides that the normal value is determined by comparing the normal value of securities with similar characteristics traded on Italian regulated markets or foreign, failing that, by other elements can be determined objectively.
The lower values entered on bonds and similar securities in series or in mass become significant tax.
Na závěr, the combined effect of the aforementioned Articles 85, 92, 94, 101 a 110 of Tuir, it follows that the criterion for the minimum value of bonds and similar securities which are financial assets differs from the method used to calculate the minimum value bonds and similar securities which are not only financial assets for securities traded on Italian regulated markets or foreign, by changing the reference time period (six months and last month).
Tax deductibility of child values and losses on financial instruments not listed similar actions
According to the letter) of the second paragraph of Article 44 of Tuir, are considered similar actions, securities and financial instruments whose remuneration is made “entirely” from participation in the economic performance of the issuing company or other companies belonging to the same group or the deal in relation to which the securities and financial instruments are issued.
Conversely, the 9th paragraph letter a) of Article 109 of Tuir provides non-deductible from business income of any kind of payment due on securities, financial instruments, however denominated, under Article 44, for share of it which directly or indirectly involve the participation to the economic performance of the issuing company or other companies within the same group or the deal in relation to which the securities were issued.
In light of that regulatory system, the tax regime applicable to securities stems from choices made by taxpayers.
Opravdu, it is sufficient that the conditions governing the financial instrument providing for the remuneration is not “totally” from shared economic performance in order to escape from the participation exemption regime governed by Article 87 of Tuir.
The specific tax regime applicable then the forecast will depend on whether or not the conditions of issue, the risk of loss, even partial, the contribution, provided that specifically requested by the letter c) of the second paragraph of Article 44 of Tuir, for assimilation financial instrument to bonds:
for failure prediction of this risk, the financial instrument will be similar to bonds and, proto, the resulting income will be subject to tax under Article 26, first paragraph, of Presidential Decree 600/1973 and Legislative Decree 239/1996
if estimates of risk, the financial instrument will be similar to atypical securities and the resulting income will be subject to tax under Article 5 of Decree 512/1983, converted into Law 649/1983.
však, if the underwriter of the securities carries on a business, will apply the general principle – enshrined in Article 81 of Tuir – absorption in the business income of all income regardless of its source. The competition will involve the training of business income of the said remuneration, subject to the application of withholding taxes under tax.
That said, check what happens if the company issues a hybrid financial instrument – that is similar actions or similar obligations, and therefore similar to atypical securities – and then bear operating losses, which go to zero intake made.
Since financial instrument “hybrid”, the question arises whether the same constitutes a capital contribution to society, ie a sort of “unusual contribution”, or reciprocal relationship is not participatory.
The consequences arising from the civil side tax classification are relevant.
If you were to configure a non-participating reciprocal relationship, the loss suffered by the company will be translated into pro-rata to the chief underwriter of the security, by reducing the company’s debt to the subscriber and the simultaneous detection of a windfall profits tax.
Conversely, where it constitutes a contribution to society, there is a real double deduction of the same losses: the first time in the company that has suffered a second time and head to the subscriber financial instrument, which undergoes an impairment of the same.
Kromě toho, the fact that the loss of value of hybrid financial instrument may be relevant in the assessment of tax of the same at the end of the fiscal year, in this case the “write-down of hybrid financial instruments” (1).
Traceability of hybrid financial instruments under Article 85, first paragraph, letter e) of Tuir involves the applicability in toto to these financial instruments of the existing tax law obligations and similar securities, discussed above.