New capital gains regime for real estate companies proposed in Italian Budget

Introduction

Parliament is currently discussing the draft 2023 Budget Law. Although this is yet to be approved, the draft signals a potential change to the taxation of rela estate companies in Italy. Specifically, the tax treatment of shareholdings in such companies.

What’s the proposal?

Article 23 of Presidential Decree no. 917/1986 proposes new provisions regarding the ‘alienation’ of shareholdings in real estate companies by certain persons.

Specifically, the proposals relate to disposals by:

• non-resident shareholders;
• in respect of non-resident “real estate entities and companies”

In other words, companies and entities that derive their value mainly from real estate situated within the Italian territory.

It is a provision aimed at taxing capital gains on foreign shareholdings that result, de facto, the transfer of real estate properties located in Italy.

OECD ‘land rich clause’

Undoubtedly, the proposal has got its inspiration fromArticle 13, paragraph 3, of the OECD Model Tax Treaty. This is often referred to as the “land rich clause”.

The proposals could have an immediate impact on cases where the shareholder realising the capital gain:

• is tax resident in a State not having an in-force tax treaty with Italy; or
• does not meet the requirements to apply the tax treaty.

The proposals do not apply to shares listed on a stock exchange.

Conclusion

Where there is a tax treaty in force, the change could apply where the tax treaty with the shareholder’s state of residence grants Italy rights of taxation in respect of capital gains on shareholdings in real estate companies.

In this respect, Italy may tax such capital gains in accordance with provisions set forth by over twenty tax treaties including the land rich clause. It is likely that the number of tax treaties that reflect this position will increase over the coming years.

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The content of this article is provided for educational and information purposes only. It is not intended, and should not be construed, as tax or legal advice. We recommend you seek formal tax and legal advice before taking, or refraining from, any action based on the contents of this article.