In principle, CbCR must be prepared by parent companies of
multinational groups with a consolidated turnover exceeding
€750 million ($895 million). However, in some cases (e.g.
where the group foreign parent company is not obliged to, or
fails to file the CbCR in its jurisdiction), the burden of
filing the CbCR falls on an Italian subsidiary of the
group.
Recently released Central Revenue Decision No. 275956, dated
November 28 2017, provided further clarification related to
cases in which Italian companies belonging to multinational
groups may be relieved of CbCR obligations, including the CbCR
voluntary filing by the group parent company.
In this situation, solely for the financial year (FY) in
process on December 31 2016, the Italian controlled company may
be relieved from the CbCR communication formalities if:
- The parent company voluntarily files the
CbCR in its jurisdiction within 12 months following the end
of the reported FY;
- The parent company jurisdiction has
introduced, within the terms of the presentation of the CbCR,
an obligation to file the CbCR, even if related to other FYs
(e.g. the following FY);
- A qualifying agreement between Italy and
the parent company jurisdiction is in force at the deadline
for filing the CbCR;
- The parent company jurisdiction does not
notify the Italian tax authorities of any systemic
non-fulfilment situation; or
- The Italian company of the group
communicates to the Italian tax authorities which group
entity bears the CbCR reporting obligation and its country of
residence.
In addition to the above, Italian controlled entities of
foreign groups may be exempt from the CbCR filing formalities
if another foreign EU legal entity of the group is designated
or another legal entity of the group, acting as a substitute
for the parent company, is appointed.
Furthermore, Central Revenue Decision No. 288555, dated
December 11 2017, provided for a postponement of the CbCR
filing deadline, stating that the CbCR related to FY 2016 could
be filed by Italian companies no later than February 9 2018
(instead of December 31 2017).
This additional guidance has been warmly welcomed as it
allows better focus on the newly introduced fulfilment
requirements, deeply rooted in BEPS Action 13. This is
particularly significant in cases where the jurisdiction of the
group parent company is introducing the CbCR regulations at a
different time to Italy.
For example, Switzerland signed the OECD agreement for the
automatic exchange of CbCR reporting on January 27 2016
(multilateral competent authority agreement, or MCAA), and this
was endorsed by Federal Decree on June 16 2017. On the same
day, a dedicated law (Law on the MCAA; LMCAA) was released by
the Swiss Parliament to regulate CbCR preparation, filing and
exchange regulations, in force since December 1 2017. Based on
the LMCAA, the first FY subject to reporting is that beginning
January 1 2018. However, Swiss parent companies may voluntarily
file the CbCR related to prior fiscal years which will be
transmitted by Swiss tax authorities to foreign competent
authorities. The LMCAA was meant to formally activate the
exchange of CbCR; as a matter of fact and as reported on the
OECD website (please see:
http://bit.ly/CbCRexchangerelationships), the bilateral CbCR
exchange relationship between Italy and Switzerland was to be
activated as at December 1 2017 (the date on which the LMCAA
entered into force).
Based on the above, the Italian tax administration should
receive directly from the Swiss tax authorities the CbCR for
the FY 2016 of Swiss headed groups. Therefore, when carrying
out voluntary filing to the Swiss tax authorities for FY 2016,
Italian-resident companies could name the Swiss ultimate parent
company as the party responsible for CbCR.
Similar conclusions apply with reference to US cases, as a
dedicated bilateral competent authority agreement (DTC CAA) was
signed on September 27 2017 between representatives of Italy
and the US providing for the CbCR automatic exchange. As
provided by US regulations, the first FY covered by the CbCR is
that beginning on June 30 2016. However, a voluntary filing by
US resident parent companies is also acceptable for the period
between January 1 2016 and June 29 2016.
|
|
Barbara
Scampuddu |
Gian Luca
Nieddu |
Barbara Scampuddu (barbara.scampuddu@hager-partners.it)
and Gian Luca Nieddu (gianluca.nieddu@hager-partners.it)
Hager & Partners
Tel: +39 02 7780711
Website: www.hager-partners.it