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Parliamentary questions
20 February 2014
E-002041-14
Question for written answer
to the Commission
Rule 117
Paolo Bartolozzi (PPE) , Raffaele Baldassarre (PPE) , Alfredo Pallone (PPE) , Antonio Cancian (PPE) , Lara Comi (PPE) , Barbara Matera (PPE) , Aldo Patriciello (PPE) , Oreste Rossi (PPE) , Marco Scurria (PPE) , Erminia Mazzoni (PPE) , Carlo Fidanza (PPE) , Fabrizio Bertot (PPE) , Crescenzio Rivellini (PPE)

 Subject:  Incompatibility between Article 177 (2) of the Italian Consolidated Tax Act and the ‘Mergers’ Directive — possibility of ‘reverse’ discrimination
 Answer(s) 

The ‘Mergers’ Directive (Directive 90/434/EC, now Directive 2009/133/EC) imposes rules on fiscal neutrality throughout the EU for acts of corporate reorganisation. This directive was transposed to the Italian judicial system in Legislative Decree no 544 of 1992, which lays down rules for transactions between persons resident in Italy and persons resident in other Member States. In line with Directive 90/434/EC, the Italian Government also pronounced Legislative Decree no 358/97, which recognises the Community principles of fiscal neutrality and freedom of competition in our system and harmonises the tax system for operations involving the exchange of holdings, as provided for under Legislative Decree no 544/92, in so doing demonstrating that the performance of such operations within the scope of fiscal neutrality derives in juridical terms from the Community system. However, Article 177 (2) of the Italian Consolidated Tax Act (Presidential Decree 917/86, as amended), which derives from Article 5 of Legislative Decree no 385/97 and regulates the exchange of holdings by transfer, renders eligibility for the neutrality system dependant on the accounting treatment adopted by the transferring company, thereby negating the neutrality system. Articles 178 and 179 of the Italian Consolidated Tax Act, which regulate intra-Community trade operations, instead provide that, on the assumption of constant tax values of the assets involved, such operations will not give rise to tax liability, irrespective of the accounting decisions made by the operators concerned.

In the light of the above, the Commission is asked the following questions:

1. Can the Commission evaluate the possibility of discrimination which this system generates by imposing a treatment on nationals which is less advantageous than that accorded to persons operating transnationally?
2. Can the Commission evaluate whether the lack of harmonisation between internal regulations and Community regulations, as described above, is liable to restrict freedom of establishment and freedom of competition by dissuading operators from other Member States from setting up business in Italy to avoid the more onerous regulations imposed under Article 177 (2) of the Italian Consolidated Tax Act?
3. Subject to the above, does the Commission envisage measures to remedy this incompatibility with the principles laid down in Directive 90/434/EC, a situation which excludes internal reorganisation operations from eligibility for the fundamental principle of fiscal neutrality sanctioned in the ‘Mergers’ Directive?

Original language of question: ITOJ C 317, 16/09/2014
Last updated: 4 March 2014Legal notice