On 24th February 2023, the Italian Tax Authority (Agenzia delle Entrate) issued a provision which modifies the previous provision of 15th February 2022 on the Patent Box new regime, in order to make it more adherent to what provided for in art. 6 of the Legislative Decree 21/10/21, no. 146 (as modified by law 234 of 30/12/2021).
The optional facilitated regime introduced with the mentioned art. 6 allows the owner of the right of economic exploitation related to the specific intangible assets used in entrepreneurial activities to obtain an increased tax deduction of the costs bore for the research and development activities referable to the same intangible assets.
With a document published also on the 24th of February, the Italian Tax Authority provided an updated explicative document on the Patent Box new regime, answering the most frequent interpretative doubts and clarifying the modifications introduced by Provision of the 24th February 2023.
Definitions of relevant activities
The recent Provision defined that the relevant activities, that is the ones deriving from the costs of research and development, must be carried out in laboratories or facilities located in the Italian territory, in countries belonging to the European Union, in States adherent to the European economic area with which Italy has entered into an agreement which assures an effective exchange of information, that is in countries allowing an adequate exchange of information pursuant to DM 4th September 1996.
Electronic signature
It was confirmed the necessity of signing electronically the documentation “through electronic signature with time stamp by the time of presentation of the tax return”. Nevertheless, the new provision pointed out that “for the first tax period of application of the patent box new regime the electronic signature with time stamp can be put within 6 months from the day of the presentation of the tax return”.
Charges documentary and penalties
By modifying point 11.4 of the previous provision of 2022, the Italian Tax Authority confirmed that the preparation of the “suitable documentation” is not an essential condition to the subscription to the Patent Box new regime and to benefit from it. It is a faculty of a taxpayer, aimed at allowing him/her to take advantage of the penalty exemption in case of correction of the increase.
Therefore, the penalties provided for at point. 11.4 refer to the hypotheses in which, even if the taxpayer joins the regime of charges documentary provided for in art. 6, comma 6, of D.L. 21/10/2021, the controlling organisms are not able to verify the existence of the access conditions to the regime and the correctness of the quantification of the benefit due to the complete lack of any type of documentation in support of the fiscal benefit enjoyed by the taxpayer.
In such circumstances, the integral recovery of the increase will be carried out, with the following application of interests and imposition of sanctions.
Ilaria Feriti