The main tax news of the “Decreto Milleproroghe” and the “Decreto Legge Energia”

 

Foreword

This newsletter analyses the new features introduced by the amendments and corrections to Law Decree no. 228/2021 “Urgent provisions on legislative deadlines” (the so-called “Decreto Milleproroghe 2022“) concerning benefits on 4.0 assets, and the suspension of depreciation, while on a statutory level, the possibility of sterilising losses is introduced also on 2021 financial statements.

Finally, the draft of the so-called ‘Energy Decree Law’, approved on 18 February by the Council of Ministers, re-proposes the tax benefits on the revaluation of land and unlisted participations.

 

Tax credit for investments in capital goods – further postponement

An amendment approved in the Decreto Milleproroghe extend by 6 months, in particular from 30th June to 31st December 2022, the deadline for the realisation of investments for which, by 31st December 2021, the order has been accepted by the seller and down payments of at least 20% of the cost have been made.

Thanks to the approved amendment, for such investments, to be completed by 31 December 2022, the tax credit rates in force in 2021, which are more advantageous than those of 2022, will continue to apply.

 

In particular:

• for ordinary tangible and intangible assets not 4.0 the tax credit is recognised to the extent of 10% of the cost (15% for investments in capital goods, both tangible and intangible, intended for the organisation of forms of agile work), up to a maximum limit of eligible costs of €2 million for tangible assets and €1 million for intangible assets, instead of the 6% envisaged for 2022.
• for tangible 4.0 assets the tax credit, on the other hand, is recognised to the extent of:

– 50% for the portion of investments up to 2.5 million euros,

– 30% of the cost, for the share of investments exceeding 2.5 million and up to 10 million euro,

– 10% of the cost, for the portion of investments above 10 million and up to 20 million, instead of 40%-20%-10% respectively in 2022.

• for investments in intangible assets 4.0, the extension has no relevance as the 20% rate is confirmed also in 2022, within the maximum limit of eligible costs of EUR 1 million.

 

 

Suspension of depreciation and amortisation also for the 2021 financial statements

With respect to the suspension of depreciation, provided for by the 2022 Budget Law also for the 2021 financial statements, in our Newsletter no. 1 of January we had pointed out that the regulatory text granted this possibility only to entities that, already in the financial year in progress as of 15 August 2020, had adhered to the 100% suspension of the annual depreciation of the cost of tangible and intangible assets. It therefore seemed to preclude access to those who had suspended depreciation even only partially.

The amendments to the Decreto Milleproroghe modify this last indication, completely eliminating the reference to persons who have already adhered to the suspension in 2020: in fact, therefore, in 2021 the same possibility granted in 2020 is re-proposed to all entities, whether they are in their first or second year of suspension of depreciation.

 

 

Suspension of 2021 statutory losses

The amendment to the Decreto Milleproroghe confirms the possibility of sterilising losses arising in the 2021 financial statements, postponing the obligation to cover them to the 2026 financial statements and suspending certain provisions of the Italian Civil Code, as already occurred for 2020 losses that can be covered within the 2025 financial statements.

More specifically, for losses arising in the financial year current on 31 December 2021, articles 2446, paragraphs 2 and 3, 2447, 2482-bis, paragraphs 4, 5 and 6, and 2482-ter do not apply and the cause of dissolution of the company due to reduction or loss of share capital pursuant to Articles 2484, paragraph 1, number 4), and 2545-duodecies do not apply.

Articles 2446 and 2447 relate to public limited companies, while articles 2482-bis and ter relate to limited liability companies: essentially, the rules concerning the reduction of capital for losses (articles 2446 and 2482-bis) and the reduction of share capital below the legal minimum (articles 2447 and 2482-ter) are suspended.

The deadline by which the lossed must be reduced to less than one-third, as set forth in articles 2446, paragraph 2, and 2482-bis, paragraph 4, is postponed to the fifth subsequent financial year: in essence, the normal reference to the financial year following the one in which the loss occurred is shifted to 2026, with the obligation for the shareholders’ meeting approving the financial statements for that year to reduce the capital in proportion to the losses ascertained. The same applies in the case of a reduction of the share capital below the legal minimum, which allows the shareholders to decide to postpone their decisions to 2026: it is a question of reducing the capital and simultaneously increasing it to an amount not lower than the minimum, or of transforming the company.

The shareholders’ meeting may therefore resolve to postpone such decisions to the shareholders’ meeting called to approve the financial statements for 2026, since the cause for the dissolution of the company does not apply (articles 2484, paragraph 1, no. 4 for corporations and 2545-duodecies for cooperatives). However, the directors are still obliged to assess the adequacy of the assumption of business going concern in the preparation of the financial statements as well as to provide information requiring them to call a shareholders’ meeting “without delay” to report to the shareholders on the situation.

 

Lastly, the law requires a separate indication in the notes to the financial statements of “suspended” losses, specifying their origin as well as the changes occurred during the year.

 

 

Extension of the revaluation of equity investments and land

As mentioned in the introduction, the so-called “DL Energia” re-proposes the tax benefits introduced and regulated by Articles 5 and 7 of Law 448/2001 regarding the revaluation of land and unlisted equity investments.

Therefore, also for 2022, individuals, partnership companies, non-commercial entities and non-resident entities without a permanent establishment in Italy, are allowed to revalue the cost or purchase value of unlisted participations and land held on 1 January 2022, outside the business regime. In this case, for the purposes of determining the capital gain, the value of the participations may be taken, instead of the cost or purchase value, based on the value resulting from an appraisal drafted and certified by a qualified professional.

Such asseveration, together with the payment of the substitute tax due by the taxpayer (in a single payment, or in the first of the three annual instalments allowed) must be made by 15 June 2022.

It should be noted that the substitute tax due will be at a rate of 14%, up from the 11% rate that was in force for the 2021 period.

 

 

LDP remains at your disposal for any further clarifications.