- Setting up a company
- Establishing a branch of a foreign company in Italy
- Opening a Representative Office in Italy
- Innovative start-up companies
- Accoting and tax services
- Debt collection in Italy
- Employment and Payroll
26 June, 2018
Q. Is it mandatory for an employer establish a relevant body and register at public bodies before hiring employees?
A. Yes, it is.
Q. Who wants to hire employees in Italy must establish a relevant body (legal entity, like an «S.r.l.» or, at least, a branch; a rep-office is not enough).
A. After the employer has been established it must be registered at the relevant payroll public bodies.
Q. How long does it take to register a new company with the Payroll bodies?
A. 1-4 working days.
Q. Is there any difference between big or small employers?
A. Yes, many. We will consider – roughly – as a «big employer» the one who has:
In the first case, the rules for big employers are applied only to the business unit (and not, for example, to the other business unit far from the first which hires four employees); in the second case, the employer will always be considered as «big».
We will consider as «small employers» the other ones.
Q. What kind of CBAs are applicable?
A. The most important is the national CBA. Often there are also regional or local CBAs regulating some aspects.
Q. Is the application of a CBA mandatory?
A. No. The company is free to choose whether applying a CBA or not. If applied, the CBA prevail over the law in favour of the employees.
Q. Is the application of a CBA advisable?
A. It depends on the specific situations. On a general basis, the application of a CBA is advisable:
Employees are grouped in four legal categories:
The Executives have a special regulation and a specific CBA, different from the other employees. This memo focuses on non-executive employees. The CBAs usually splits the non-executives employees in «levels» (6-8 depending on the CBA). Each level describes a kind of duties (from the cleaning staff up to the top level employees).
The level of the employee affects many aspects of the employment. E.g.:
Q. What is the maximum probationary period allowed by law?
A. The law providesas follows:
The CBA, where applied, provides for a range starting with 45 days for lower level employees up to 6 months for top level ones.
Q. What is the notice in case of withdrawal from the employment relationship during the trial period?
A. Each party may terminate the employment relationship at any time, without notice.
Q. Are fixed-term contacts prohibited for specific duties or employees?
A. No, they aren’t.
Q. Are fixed-term contacts prohibited for permanent tasks?
A.No, they can be stipulated for any kind of duty.
Q. What is the maximum duration of a single fixed-term contract, including any renewals?
A. It’s 36 months. After this period, a fixed-term worker acquires the right to a permanent position in the same firm.
Q. Is there a minimum duration for a single contract?
A. No, there isn’t.
Q. How many times can be prorogued a single fixed-term contract?
A. Any contract – if shorter than 36 months – can be renewed or prorogued up to 5 times. If the number of prorogations is higher, the worker acquires the right to a permanent position in the same firm. If the worker is hired with a fixed term contract within ten days of the end of a precedent contract lasting up to six months, or within twenty days of the end of a precedent contract lasting more than six months, the second contract becomes a permanent contract.
Q. Should the Company respect a notice period at the end of the contract?
Q.Are there any prohibitions to the stipulation of a fixed-terms contract?
A. Yes, the prohibitions concerns:
Q. Has a company to respect a limit on hiring by fixed-term contracts?
A. Yes, the law provides 20% of permanent workers; the CBA provides 28% of permanent worker. In the business units with up to 15 employees, 4 fixed-term contracts are allowed.
The percentage limits do not concern:
Q. Does the law mandate additional compensation for overtime hours worked by an employee on a temporary contract?
A. Yes, it does: as overtime work.
Q. Is part-time work allowed?
A. Yes, it is.
Q. Is it allowed to switch from part-time to full-time and vice versa?
A. Yes, if both parties agree.
Q. What is the specific character of the part-time work?
A. The working hours of part-timers are restricted to the working time provided for by the contract and can be changed by the employer, only within the limits of the «clausole elastiche» o delle «clausole flessibili».
Q. What are the so called «clausole elastiche» and the «clausole flessibili»?
A. They are provisions of the individual contract – under the limits and conditions of the CBA – which allow the employer to change the extent or the temporal collocation of the working time.
Q. Can the employer request additional work?
A. Yes, within limits. It is called «lavoro supplementare» and must be rewarded with an additional wages.
Q. What is the wage premium for the italian «lavoro supplementare»?
A. The law provides 15% of global hourly remuneration. The CBA provides 35% of global hourly remuneration.
Q. What is a job on call?
A. It is an employment contract in which the worker is available for a certain period in the day, the week, etc. The employee will work (and will get the salary) only if the employer calls him/her to work.
There are two types of job on call contract:
Q. Are set forth limits to the stipulation of a job on call contract?
A. Yes. The contract can be stipulated with subjects over 55 years of age and with subjects under 24 years of age (in this case, the work performance must be carried out within the twenty-fifth year of age). In any case, the use of the job on call contract is allowed, for each worker with the same employer, for a maximum period of 400 days of effective work, in a period of 3 years. In case of exceeding this period, the employee will be entitled to a full-time and permanent employment contract.
Q. Are there any prohibitions to the stipulation of a job on call contract?
A. Yes, the same as for the fixed-term contracts (see before, § 1.5.g).
Q. Must the employer notify or consult a third party?
A. The employer must just notify the duration of the performance to the public bodies, by «sms» or e-mail. The employer must annually inform trades unions about the use of the job on call contract.
Q. What are the minimum wages for employees as of 1st March 2018 according with the CBA?
A. As follows, roughly (Euro gross per month for 14 monthly instalments per year):
Q. What is the «TFR»?
A. It is a part of the salary which is accrued all along the employment contract and paid on at its termination (except for special reasons). The TFR is roughly equal to 7,41% of the yearly salary.
Q. What is the cost of the salary?
A. The total cost that an employer has to pay with regard to its employees. It is composed by remuneration, contributions and other subsidiary costs charged to the employer.
Q. How does we calculate the cost of the salary?
A. Basically the cost of the salary is calculated adding:
Q. Are there reductions of the costs of the salary?
A. Yes, in several cases depending on the kind of employer, the kind of employee (people with handicaps, unemployed workers, young workers, trainees, …)
Q. How many hours are there in a standard working week?
A. 40 hours;
Q. What is the maximum number of hours (including overtime) allowed in a workweek?
A. 48 hours, for each seven-day period. The average duration of the working time must be calculated with reference to a period not exceeding 4 months. The CBA may provide a longer period up to six months or up to twelve months for objective reasons, related to the organization of work.
Q. What is the maximum number of working days allowed in a workweek?
A. Six days.This amount can be calculated as an average on 14 days. Therefore, the employee must have one day off for each work week, on an average period of two weeks.
Q. Is there a legally designated weekly day of rest (i.e. a customary weekly holiday)?
A. Usually Sunday, but this is not mandatory.
Q. What are, if any, the restrictions on overtime work?
A. Overtime cannot exceed 250 hours per year. CBAs may introduce different rules.
Q. What is the wage premium for overtime?
A. According with the CBA:
Q. What is «night work»?
A. It is the work carried out between 22.00 and 6.00 a.m.
Q. Can women work the same night hours as men?
A. Yes, they can.
Q. What are, if any, the restrictions on the night work?
A. As follows:
Q. What is the wage premium for night work?
A. It’s an increase of 15% of the gross salary.
Q. What is the mandatory paid annual leave for an employee?
A. The law provides that the employee is entitled to an annual period of paid leave not lower than 4 weeks. The CBA increases the annual leave to 26 working days, to be calculated on a work week of six days.
Q. Does the law mandate paid maternity leave?
A. Yes, it does.
Q. What is the mandatory minimum length of paid maternity leave?
A. It’s 5 months.
Q. What is the wages during the maternity leave?
A. The Governments pays roughly the 80% of the normal salary. The CBA provides that the employer to pay the difference as to reach 100% of the pay.
Q. The employee will receive a pay during sick leaves?
A. Yes. A part of it is borne by the Government («INPS»), as follows:
Q. Is it legal for an employer to terminate the contract of an employee on the basis of redundancy only?
A. Yes, it is. If a company with more than 15 employees decides to lay off at least 5 workers within 120 days it’s a collective lay off, subject to a specific proceeding involving trade unions. Otherwise, the company can proceed with an individual dismissal for redundancy.
Q. Must the employer notify or consult a third party before dismissing one redundant employee?
A. Yes, but only for big employers. The individual dismissal must be preceded by a communication to the public body and a short proceeding aimed to reach an agreement among the parties. If there is no agreement the dismissal can be performed as well.
Q. Must the employer obtain the approval of a third party in order to dismiss one or more redundant employees?
A. No, it doesn’t.
Q. What is the length of the notice period that an employer must provide before making an employee redundant?
A. According with the CBA, the notice periods are calculated in calendar days, starting from the first and the sixteenth day of each month.
The notice periods are the following:
Q. Assuming that an employee is made redundant after one year of employment, would he automatically be eligible for unemployment protection and receive unemployment benefits?
A. Yes, he would: but under certain conditions. The main protection is called «Naspi».
The Naspiis granted to the employee when he/she:
12 May, 2018
Read our guide on doing business in Lombardy
12 May, 2018
Read our Guide on National and Regional Incentives for Companies and Individuals in Italy.
27 February, 2018
Italy has recently taken important new steps to position itself as a welcoming home for foreign investments. Compared to the past, it is becoming increasingly attractive to open companies in Italy for non-EU and EU residents, also from a tax point of view.
Please find below general information on some of the main tax incentives.
Highly-skilled employees favorable Tax Regime
The Italian government has introduced a favorable tax regime for highly-skilled employees coming to Italy to perform their working activities.
The benefit is the reduction to 50% of taxable income (i.e. only 50% of the income earned by the individual from the employment activity will be subject to taxation in Italy).
It can apply for 5 years starting with the year in which the individual becomes an Italian tax resident.
To benefit of the 50% tax reduction, the employee:
Optional Patent Box regime for IP
According to the Patent Box regime, a company can exempt 50 % of certain qualifying income derived from licensing or direct exploitation of intangibles from its tax base for Corporate Income Tax (“IRES” at a rate of 24%) and Regional Tax (“IRAP” a rate of 3,9%) purposes.
The Patent Box regime is available to Italian companies as well as to Italian permanent establishments (PEs) of entities resident in countries having an effective exchange of information with Italy.
Tax credit for Research and Development
Entities investing in R&D activities (e.g. human resources, equipment used, research contracts and technical skills) within year 2020 are entitled to benefit from a tax credit equal to 50% of the annual R&D incremental expenses exceeding the average expenses of fiscal years 2012, 2013 and 2014.
For new incorporated entities (after 2014), the average to be considered is zero (i.e. all R&D expenses are considered eligible for the tax credit).
The benefit applies also to resident companies, Italian permanent establishments of nonresident companies included, that carry out R&D activities through contracts with group entities that are resident for tax purposes in Eu/European Economic Area countries or in other countries and territories that allow an exchange of information with Italy.
Allowance for Corporate Equity (“ACE”)
The Allowance for Corporate Equity (also known as Notional Interest Deduction on capital increase) is a tax incentive introduced to promote the recapitalization of undertakings and to mitigate the different tax treatment applied to companies funded with debt and others funded with equity.
ACE benefit entails a notional deduction from Italian Corporate Income Taxable base (Italian Corporate Income tax rate is equal to 24%).
“Super depreciation” and “hyper depreciation” allowances
Italian Budget law for 2018 confirmed a 30% extra depreciation deduction (i.e. total tax depreciation of up to 130% of the cost, so called “super depreciation”) for purchases of new tangible fixed assets, excluding cars.
In practice, the tax basis is increased by 30% so that the tax depreciation exceeds the book depreciation of 30%.
Italian Budget law for 2018 also confirmed the 150% extra depreciation deduction (i.e. total tax depreciation of up to 250% of the cost, so called “hyper depreciation”) for new assets acquired for the technological transformation of enterprises. The law contains a list of qualifying assets, which are related to plant, equipment and machinery whose operations are digitally controlled or operated by smart sensors and drivers interconnected with a factory’s computer systems.
28 January, 2018
What legislation governs the establishment and operation of Alternative Investment Funds?
Italian AIF’s are regulated mainly by:
Of course, all Italian AIFs are impacted operationally by Directive 2011/61/EU on Alternative Investment Fund Managers (the “AIFM Directive”).
Are managers or advisers to Alternative Investment Funds required to be licensed, authorised or regulated by a regulatory body?
All Italian AIF managers must be authorized by Bank of Italy after consultation with CONSOB (the Italian Financial Services Authority). The authorization shall be granted by Bank of Italy within 90 calendar days beginning from the day of filing the application. Bank of Italy can suspend one or more times the term if it requires additional documents and/or information. Generally, the authorization procedure should not exceed 120 days.
Are Alternative Investment Funds themselves required to be licensed, authorised or regulated by a regulatory body?
AIFs themselves need not to be authorized, but their regulations must be approved by Bank of Italy.
Does the regulatory regime distinguish between open-ended and closed-ended Alternative Investment Funds (or otherwise differentiate between different types of funds) and if so how?
Ministerial Decree 5 March 2015, n. 30 distinguishes between 4 types of Italian AIFs:
Italian Open-ended AIF’s
The capital of an Italian Open-ended AIF can be invested in:
It can also invest in financial instruments not traded on a regulated market, if the amount of the investment does not exceed 20% of the capital.
The investors have the right to request redemption of the units/shares of the capital of an Open-ended AIF at least once a year. Furthermore, the AIF must calculate the value of the units/shares every year, or any time new units/shares are issued. The investors have the right to receive the redemption within 15 days from the request.
Italian Closed-ended AIF’s
The capital of an Italian Closed-ended AIF can be invested in:
The redemption of the units/shares of the capital of a Closed-ended AIF takes place at maturity of the fund. In this respect, please note that the regulation of the AIF may allow the anticipated redemption of the unit/shares in the following cases: (i) at the initiative of the AIF’s manger, to all the participants, proportionally to the shares owned by each participant; (ii) at the request of a single participant, for an amount: (iia) not higher than the sums acquired through new subscription; (iib) not higher than the value of the loans received by the AIF, even though they do not exceed 10% of the AIF’s value.
The law does not establish a minimum or maximum duration period for a Closed-ended AIF, although these types of AIFs usually mature after 5-10 years.
Italian Real estate AIF’s
Italian Real estate AIF are Closed-ended AIF that can invest in:
The value of this type of real estate investment cannot be lower than 2/3 of the gross value of all the investments made by the AIF, reduced to 51% if at least 20% of the capital of the AIF is invested in securitization transactions involving immovable assets, immovable property rights, or credits secured by mortgage.
Italian Reserved AIF’s
Italian Reserved AIFs are alternative investment funds reserved exclusively:
An Italian Reserved AIF can be Open-ended or Closed-ended.
What does the authorisation process involve?
Bank of Italy (after consulting CONSOB) will authorize an AIFM when the following conditions, inter alia, are met:
Authorization will be denied if upon verification of the above conditions, Bank of Italy deems that the sound and prudent management of the company is not ensured.
The application to obtain approval of an AIF regulation from Bank of Italy must annex:
The regulation is deemed to be approved 60 days after the date of receipt of the application by the Bank of Italy complete with all necessary documentation.
Are there local residence or other local qualification requirements?
The AIFM must have its registered office and head office in Italy.
What service providers are required?
The AIFM must enter into an agreement with a depositary bank to safekeep the assets of the fund.
The statutory audit must be devolved to an independent audit firm (revisore legale dei conti) enrolled in the relevant public register.
What co-operation or information sharing agreements have been entered into with other governments or regulators?
The list of agreements and cooperation actions is available on the website of the Ministry of Economy and Finance (http://www.finanze.gov.it/opencms/it/fiscalita-comunitaria-e-internazionale/convenzioni-e-accordi/).
What are the principal legal structures used for Alternative Investment Funds?
Under Italian law, the setting-up of alternative investments funds is reserved to companies authorized by Bank of Italy (having consulted CONSOB) to operate either as:
The main difference between the two schemes is the contractual relationship between the company and its investors. Particularly, a SICAF is closed-ended undertaking for collective investments (“UCI”) incorporated as private limited liability company by shares (società per azioni), whose share capital is fixed, having as its exclusive corporate purpose the collective investment of the assets raised by offering its shares and other hybrid financial instruments to the public; the sub-funds are established by the SICAF and the investors become shareholders of the SICAF itself. As a consequence, investors will have governance rights on the SICAF and may have a voice on the investment strategies of the funds, by exercising their voting right within the SICAF.
Instead, under a SGR scheme, the funds are set-up by the SGR and the investors will purchase only units of the funds, without becoming shareholders of the SGR. Consequently, the investors do not have any voting rights whatsoever in relation to the management of the funds; the investors, by subscribing the funds’ units, will establish a contractual relationship only with the SGR.
Please describe the limited liability of investors.
Investors will not be liable beyond the amount of their contributions.
Are there any limits on the manager’s ability to restrict redemptions in open-ended funds or transfers in open-ended or closed-ended funds?
In Open-ended AIFs, the investors have the right to request redemption of the units/shares of the capital of an Open-ended AIF at least once a year. Furthermore, the AIF must calculate the value of the units/shares every year, or any time new units/shares are issued. The investors have the right to receive the redemption within 15 days from the request.
In exceptional cases specifically indicated in the AIF regulation or in the AIFM by-laws, the right to receive the redemption can be suspended for not more than one month. The suspension must be immediately communicated to Bank of Italy and CONSOB.
In Closed-ended funds, the investors have the right to request redemption of the units/shares of the capital of a Closed-ended AIF at maturity of the fund. The maturity can be postponed, for no more than 3 years, if provided for in the AIF regulation or in the AIFM by-laws. The postponement must be immediately communicated to Bank of Italy and CONSOB.
The AIF regulation or the AIFM by-laws can also establish the cases in which the right to request redemption can be anticipated.
Are there any legislative restrictions on transfers of investors’ interests in Alternative Investment Funds?
There are no restrictions, apart from the ones provided for by the fund’s management rules, if any.
What are the key content requirements for marketing materials, whether due to legal requirements or customary practice?
Marketing materials must be accurate, clear and not misleading.
What restrictions are there on marketing Alternative Investment Funds?
Can Alternative Investment Funds be marketed to retail investors?
Open-ended and Closed-ended AIFs can be marketed to retail investors as long as they’re not Reserved AIFs.
What qualification requirements must be carried out in relation to prospective investors?
Consob Regulation No. 16190 of 29 October 2007 (“Regolamento Intermediari”) defines a “client” as the individual or company to whom the intermediary provides investment services. It identifies three categories of clients: (i) retail clients; (ii) professional clients and (iii) qualified counterparties.
Retail clients are all “customers whom do not qualify as professional customers or qualified counterparties”. Professional clients are (i) those specifically identified as such by CONSOB (so called “Professional Client by Law”) and (ii) those who request to the fund manager be qualified as professional clients.
The fund manager is required to assess the client’s characteristics and its ability to be classified as Professional Client.
Are there additional restrictions on marketing to public bodies such as government pension funds?
Generally speaking public bodies are classified as retail investors.
However, Italian law also defines professional public clients. Professional public clients by law are the Government and Bank of Italy. Instead, professional public clients on request are Regions, the Autonomous Provinces of Trento and Bolzano, the subjects referred to in art. 2 of Legislative Decree no. 267/2000, as well as national and regional public entities, provided that they meet the following requirements:
Are there any restrictions on the use of intermediaries to assist in the fundraising process?
The intermediary must be authorized to provide investment services in relation the marketing of the AIFs. The use of intermediaries so licensed is not restricted.
Are there any restrictions on the participation in Alternative Investments Funds by particular types of investors, such as financial institutions (whether as sponsors or investors)?
There are no specific restrictions on the participation by financial institutions besides the measures designed to contain systemic risk.
Are there any limitations on the types of investments that can be included in an Alternative Investment Fund’s portfolio whether for diversification reasons or otherwise?
Under Italian Law, specifically Ministerial Decree 5 March 2015, n. 30, the capital of an Alternative Investment Fund (“AIF”) can be invested in one or more of the following categories:
Disclosure of Information
What are the reporting requirements in relation to Alternative Investment Funds?
AIFMs must communicate to Bank of Italy:
Furthermore, Bank of Italy and Consob, to the extent of their duties, may require to communicate data and information and to transmit documents and records in the manner and within the time limits they establish.
The independent statutory auditors shall notify the Bank of Italy and Consob without delay of the acts or facts that may (i) constitute a serious violation of the provisions governing the activity of the AIFM, (ii) jeopardize the continued existence of the AIFM or (iii) result in an adverse opinion or a qualified opinion on the annual accounts or interim statements of AIFMs.
The board of statutory auditors shall inform the Bank of Italy and Consob without delay of any act or fact it comes to know of in the performance of its duties that may constitute a management irregularity or a violation of the provisions governing the activity of AIFM.
Is the use of side letters restricted?
The use of side letters is not restricted as long as their existence is disclosed to the other investors.
What is the tax treatment of the principal forms of Alternative Investment Funds?
The tax treatment of the main forms of AIF is as follows:
Withholding taxation is limited to certain capital gains.
What is the tax treatment of the principal forms of investment manager / adviser?
For FIA managers / consultants, the Italian legislator has not provided any ad hoc rules.
Therefore, the Consolidated Text of the Laws on Income Tax (TIUR) applies.
Are there any establishment or transfer taxes levied in connection with an investor’s participation in an Alternative Investment Fund or the transfer of the investor’s interest?
What is the tax treatment of (a) resident, (b) non-resident, and (c) pension fund investors in Alternative Investment Funds?
The tax treatment of investors is differentiated, depending on:
Is it necessary or advisable to obtain a tax ruling from the tax or regulatory authorities prior to establishing an Alternative Investment Fund?
It is not necessary, but it is highly advised.
What steps have been or are being taken to implement the US Foreign Account and Tax Compliance Act 2010 (FATCA) and other similar information reporting regimes such as the Common Reporting Standard?
The Italian Tax Authority must annually exchange information automatically with the other tax authorities of other countries in accordance with the Common Reporting Standard, based on common rules concerning the automatic exchange of information on financial accounts, including AIF.
Are there any other material tax issues?
What steps are being taken to implement the OECD’s Action Plan on Base Erosion and Profit-Shifting (BEPS), in particular Actions 6 and 7, insofar as they affect Alternative Investment Funds’ operations?
Most of the BEPS recommendations have already been implemented or will be in the near future.
1 November, 2017
Avv. Francesco Dagnino (Partner LEXIA Avvocati – www.lexia.it)
Blockchain technology (or distributed ledger technology) could assume great significance for financial markets, understood in the broad sense. Among the many economic transactions that can be done through blockchain technology, the so-called initial coin offerings (ICOs) are spreading. ICOs represent a digital form of raising financial resources through the offer to investors of a certain amount of newly issued cryptocurrencies (called digital token) – which can be easily generated by anyone through the open source Ethereum platform – in exchange for other cryptocurrencies (typically bitcoin or ether) and / or currencies with legal tender such as euros and dollars, based on a predetermined conversion ratio. Since the “good” offered to subscribers consists of “digital tokens”, ICOs are also called token bids.
Although there are numerous ways of structuring such operation, the scheme is generally the following:
The relationship between the issuer and the subscriber is governed by the so called digital token agreement, which is digitally underwritten by the subscriber by accepting the offer on the issuer’s website.
Those who buy digital tokens on the primary market through membership to an ICO are basically gambling on their value increase. Digital tokens can be sold and traded on the many cryptocurrency exchange platforms available on the Internet.
From a regulatory point of view, the legal problem of digital token sales lies in the fact that the economic rights marketed can be considered – on a case-by-case analysis – as stocks, bonds, derivatives, units of collective investment undertakings or more generally financial instruments or products. Since investors generally do not acquire any right on the issuer’s business or on the issuing company, ICOs can easily be used as tools to cheat investors.
The exponential increase of the cryptocurrency market and of savings accumulated through ICOs (over 2 billion € in the last twelve months) has attracted the attention of financial market Supervisory Authorities of different countries, which – on the basis of the principle of technological neutrality of the regulation – essentially abstained from uniquely characterizing ICOs and digital tokens, noting that, depending on the concrete structure of the ICO and the rights incorporated in the tokens, the latter may fall within the scope of the regulation of public offers of financial instruments, provision of services and investment activities, collective asset management, or equity crowdfunding.
The US Securities and Exchange Commission has expressed itself in the specific DAO / Slock.it case with communication no. 81207 of July 25, 2017, stating that tokens represented securities under federal law and that the general principles of financial instruments regulations also apply to those who collect savings through distributed ledger technology. Additionally, with communication dated September 25, 2017, the SEC announced the establishment of a new organizational unit, called “Cyber Unit”, which will have the task of hindering fraudulent conduct perpetrated by online traders through IT platforms (peer to peer platforms), including ICOs.
Similarly, the British Financial Conduct Authority, as far as the UK market is concerned, also warned investors of the high risks associated with the subscription of digital tokens, and prepared an online form and a webpage to report frauds.
With communication dated September 29, 2017, Swiss FINMA found that: (i) if digital tokens present typical features of securities (e.g. in the form of derivatives), there may be an authorization obligation; (ii) if assets collected under ICOs are managed by a third party, the rules on collective asset management could apply and (iii) if the token constitutes a means of payment, anti-money laundering provisions will apply. FINMA also stated that it initiated investigations on many ICOs, and, in the event regulatory violations are found, it will initiate enforcement actions.
Hong Kong’s Securities and Futures Commission reiterated that it should be assessed on a case-by-case basis if the ICO entails the conduct of a regulated activity and, therefore, if the subjects involved need the relevant authorizations.
A similar position has been taken by the Canadian Securities Administrators, which has stated that it will adopt a substantive and non-formalistic approach to qualify digital tokens as financial products.
The Monetary Authority of Singapore, instead, in its communication dated August 10, 2017, focused mainly on reporting the risks associated with ICOs and the purchase of tokens.
In Italy, CONSOB has not yet issued any communication. However, in our view, the applicability to ICOs of the supervisory provisions provided for by TUF, and the obligation to publish a “prospectus”, must be assessed on a case by case basis.
The investigation should be aimed at verifying:
If the offer meets all three of these requirements, the ICO will have to be treated as a public offer of financial products, as defined in art. 1, paragraph 1, lett. t), of TUF, resulting in the obligation to publish a prospectus.
In many cases the qualification of tokens as “financial products” will depend on the possibility of framing them in the residual category of “financial investments”. On this point, it is appropriate to recall CONSOB’s consolidated position based on which the concept of “financial investments” implies the coexistence of three elements:
From another perspective, the qualification of an ICO as a “public offer of financial products” could also result in the application of the provisions on “investment services and activities”, the provisions on collective asset management (in case of upstream management of resources collected by third parties), as well as the authorization requirement for trading platforms engaging in cryptocurrencies.
20 October, 2017
One of the key players and largest economies in the European Union, Italy has recently taken important new steps to position itself as a welcoming home for foreign investments.
Despite the persistent bureaucracy, which is slowly being reduced, and through the help of specialized local advice, incorporating an Italian limited liability company can be quite simple.
First of all, there are two main types of private limited liability companies:
Although traditional and simplified companies work, and are managed, in the same way, Simplified S.r.l.s. have a few restrictions compared to Traditional S.r.l.:
Notwithstanding the above, all limited liability companies must have a registered address in Italy and at least one director and one shareholder. As the law has recently changed, there are no minimum legal capital requirements for the incorporation of the company (i.e. the share capital can be any amount starting from € 1.00).
That being said, incorporating an Italian limited liability company only takes 5 steps:
It should be clarified that there is no citizenship or residency requirement to incorporate an Italian company. Under Italian law, indeed, any foreigner can incorporate a company in Italy, as long as the principle of reciprocity applies with the foreigner’s home country. Still, all directors and shareholders must obtain an Italian tax identification number (codice fiscale).
The codice fiscale is issued by the Inland Revenue Agency (Agenzia delle Entrate). Obtaining it is quite easy. It can be done personally or through a simple written proxy. The shareholder and / or director need only to fill out a form provided by the Agenzia delle Entrate and to sign a statement indicating the purpose of the request – which, of course, will be to incorporate and /or be the director of an Italian company.
Under Italian law, the shareholders must execute the articles of incorporation through a public deed. This implies that the articles of association must be signed in front of a Notary Public.
A person willing to incorporate an Italian limited liability company, therefore, has two choices: execute the articles of association personally or through a special attorney.
Executing the articles of association personally
If the shareholder wishes to execute the articles of association personally, she must come to Italy and go to a Notary Public. In this case, though, the shareholder must speak Italian or the notary must speak the shareholder’s language. If so, the shareholder will sign the Articles of Association and the by-laws of the incorporating company.
Executing the articles of association through Power of Attorney
If the shareholder wants to avoid coming to Italy immediately (because, for example, she wants to come only once the company is ready to start its business), then a Special Attorney can execute the Articles of Association on her behalf.
Basically, the shareholder must grant a Power of Attorney to an Italian lawyer (not necessarily to a lawyer but, usually, this is the case). The Power of Attorney must be notarized and apostilled; or notarized and legalized with the shareholder’s local Italian Embassy or Consulate if her home country is not a member of the apostille convention (a list of the members can be found here https://en.wikipedia.org/wiki/Apostille_Convention).
The Special Attorney will be granted the powers to execute all the necessary incorporation documents on the shareholder’s behalf.
Once the Articles of Association are executed, it will be necessary to obtain the Company VAT number (Partita Iva) which is issued by the Agenzia delle Entrate. The request is made online and the VAT number is usually issued on the same day.
The final step of the incorporation process is to obtain the certificate of incorporation (Visura). It will be necessary to file all the documentation of the incorporating company (Articles of Association, By-laws, VAT number, codice fiscale) with the chamber of commerce. The latter, after analyzing the formal aspects of the documentation, will issue the Visura within 2-3 days.
Once the Visura is issued, the incorporation process is over and the company will be officially incorporated and can open a bank account.
For more information, please contact [email protected] or [email protected]. LEXIA Avvocati is an Italian law firm with offices in Milan, Rome and Palermo, and has the expertise in providing legal assistance in English in all types of corporate, tax and labour matters in Italy. LEXIA Avvocati is the official partner of the Government Agency for the attraction of foreign direct investments http://www.investinlombardy.com/about-us/our-partners/lexia-avvocati
5 October, 2017
The share capital represents the value of the funds and the assets (the “contributions”) conferred by the shareholders, as risk capital, at the time of the incorporation of a limited liability company. It is, usually, divided into equal shares that are allocated to the shareholders in proportion to the amount of capital subscribed and paid.
Furthermore, the share capital represents a minimum guarantee for the company’s creditors for the debts the company has with them.
Under Italian law, private limited liability companies do not have a minimum share capital requirement anymore (only corporations do). Therefore, the share capital of a company can be any amount starting from 1 Euro.
As for the payment of the share capital, there are different scenarios.
If the initial share capital amount is lower than 10.000 Euros and / or there is only one shareholder, it must be entirely paid before the incorporation deed is executed in front of the Notary public.
If, instead, the share capital is equal to, or higher than, 10.000 Euros and the shareholders are more than one, only 25% of it should be paid before the execution of the incorporation deed.
It is useful to know that, under Italian law, payments of at least 3.000 Euros cannot be made in cash. Therefore, if the share capital, or the 25% of the share capital, exceeds 3.000 Euros, the payment must be done through a bank transfer. Since it must be paid before executing the incorporation deed, usually the notary has a special bank account dedicated to these situations. Basically, the payment will be done on the bank account of the Notary who will hold the amount in escrow until the company is incorporated.
5 October, 2017
To carry out its business in Italy, a foreign company may choose between a branch or a subsidiary (i.e. an Italian limited liability company entirely owned by the foreign company).
So, what is the difference between the two?
A branch is not a separate legal entity; it is an Italian unit of the foreign company. Therefore, the foreign company is liable for all the debts of the Italian branch. This might represent a risk for the foreign company in case of financial difficulties of the Italian branch.
On the other hand, a branch allows a foreign company to carry out its activities through an organisational structure cheaper and more flexible than the one required for a subsidiary. The simplified organisational structure of a branch will enable the foreign company to save costs related to its Italian investment.
A subsidiary, instead, is an Italian independent legal entity, owned by the parent company. This legal entity can be incorporated in different legal forms (among which S.r.l., S.r.l.s., S.p.A.). A subsidiary carries out its business activity directly, and it is liable for all its debts. Nobody can sue the parent company for the debts of its subsidiary.
Finally, there is no distinction regarding tax treatment between a branch and a subsidiary (from a corporate tax point of view). A branch, though, may transfer its profits to the parent company free of withholding tax, since it is not an independent entity.
29 August, 2017
The Italian government has recently implemented incentives for “highly-qualified” workers that want to relocate to Italy.
The rewarding system consists in a lowering of the personal income tax base to the extent of 50% and it applies from the tax year in which the transfer of tax residence in Italy occurred and for the next four taxing periods. Please note that “tax residence” requires compliance with at least one of the following conditions for most of the tax period: (a) registration in the Italian population register; (b) centre of vital interests in Italy (family etc.); (c) physical presence on the Italian territory.
The “lavoratori impatriati” lose the tax benefits if the residence in Italy is not maintained in the two years after the transfer, with consequent obligation of return the unpaid taxes together with penalties and interests.
The rewarding system applies to the following subjects, who transfer their fiscal residence in Italy:
19 August, 2017
The Italian government has recently introduced a specific discipline within immigration law, the so-called “Investors Visa”. The new Investors visa allows the entry and residence in Italy, outside of the entry quotas established annually by the government, to foreigners who wish to:
The Minister for Economic Development, in cooperation with the Minister of Internal Affairs and the Minister for Foreign Affairs and International Cooperation, adopted on July 21st 2017, a decree implementing the provisions of article 26-bis of TUI. The implementing provisions clarify that the issuance of the visa and the relevant residence permit are subject to verification of an actual investment or donation, provided that it is kept for at least for two years. The issuance and the validity of the Investor Visa are also subject to verification of the lawful source of the investment.
The implementing decree grants the power to issue the Investor Visa to an ad […] hoc Interministerial Committee. The decisions of this Committee will be approved by a majority of the members, except those concerning the release of the certificate of no impediment (nulla osta) to entry in Italy which will be approved in the absence of opposing votes.
The foreign applicant shall submit to the Committee:
The Committee will render a decision within 30 days from the submission of the application.
In case of a favourable decision, the Interministerial Committee will send the clearance to the relevant consulate that will issue the Investor Visa.
The Investor Visa holder shall receive a 2 years valid investor residence permit, renewable for further 3 years, subject to verification of the maintenance of the investment in Italy. Indeed, the issuance of the permit is subject to the verification that the investment has effectively been completed within 3 months of entry in the country. The permit can be revoked even before its expiration date, if it is ascertained that the investment has been withdrawn before the 2-year term (or 3-year term in case of renewal).
PERMANENT RESIDENCE PERMIT
As per the current law provisions, after 5 years of legal stay in Italy, the holder of an Investor Visa can request a permanent residence permit (i.e. EC residence permit for long term residents).
The permanent residence permit has no expiry date, must not be renewed but only updated, assigns the foreigner the right to enter Italy without a visa, and is not related to any investment or donation made in the past. The permanent residence permit may be requested by foreigners who:
11 August, 2017
Under Italian law, a company can carry out any kind of commercial activity; however, the company must indicate the specific activities it is going to carry out. Indeed, among the requirements of the incorporation deed of a limited liability company, the absence of which makes the deed void, one of the most important is the indication of the corporate purpose.
The corporate purpose is also relevant in the context of the relationships between the shareholders and between the latters and the directors; it is required to perform a plurality of functions: it represents the parameter to which the powers of representation of the directors are to be commended, as well as one of the essential foundations of the company – i.e. the change of the corporate purpose gives the dissident shareholder the right to withdraw from the company.
Therefore, the corporate purpose must be accurate, lawful, and possible.
Finally, here are two examples of a proper and an improper corporate purpose:
The Company, in compliance with any applicable law and, therefore, excluded any activities restricted by law, has for purpose the wholesale and retail of aromatic plants and spices.
The Company, in compliance with any applicable law and, therefore, excluded any activities restricted by law, has for purpose the general trade of goods.
(This corporate purpose is lawful and possible, but it is not accurate; it is too broad)