In particular, it concerns the Ministerial Decree of 27 May 2015 (GU 29 July 2015, n. 174, hereinafter decree) containing the application provisions for implementing the tax credit for investments in research and development activities, introduced with the so-called destination Italy decree (art. 3 DL n.145/2013) and subsequently redefined by the 2015 Stability Law.
Beneficiaries
All companies can benefit from the facilitation, with no turnover limits, regardless of the legal form, the economic sector in which they operate as well as the accounting regime adopted (Article 3 of the decree). Subjects who carry out research and development on commission from third parties are excluded from the list of beneficiaries, as the subsidy is granted only to companies that invest resources in R&D activities, either by carrying it out directly or by commissioning it from third parties on the basis of specific contracts
Temporal scope
Investments in R&D activities made starting from the tax period following the one in progress on 31 December 2014 and up to the one in progress on 31 December 2019 are eligible.
R&D activities eligible for tax credit
The decree confirms the R&D activities that can benefit from the subsidy:
- experimental or theoretical works carried out with the main purpose of acquiring new knowledge on the foundations of phenomena and observable facts, without the provision of practical applications or direct commercial uses;
- planned research and critical investigations aimed at acquiring new knowledge, to be used to develop new products, processes or services or to allow an improvement of existing products, processes or services or the creation of components of complex systems, necessary for industrial research, for exclusion of prototypes;
- acquiring, combining, structuring and using existing scientific, technological and business knowledge and skills to produce plans, designs or designs for new, modified or improved products, processes or services. Other activities intended for:
– the conceptual definition, planning and documentation of new products, processes and services; these activities include the preparation of projects, drawings, plans and other documentation (including feasibility studies), provided they are not intended for commercial use;
– creation of commercially usable prototypes or pilot projects intended for technological or commercial experiments, provided that the prototype is the final product and its manufacturing cost is too high to be used only for demonstration or validation purposes;
- production and testing of products, processes and services, provided they are not used or transformed for industrial applications or for commercial purposes
It is also confirmed that ordinary or periodic changes made to products, production lines, manufacturing processes, existing services and other ongoing operations are not considered research and development activities, even when such changes represent improvements.
Costs eligible for tax credit
The decree clarifies which costs pertain to the reference tax period directly connected to the performance of the R&D activities described above which are eligible for the benefit; in particular it is:
- costs relating to highly qualified personnel employed in R&D activities in possession of a research doctorate, or enrolled in a doctoral cycle at an Italian or foreign university, or in possession of a master's degree in technical or scientific disciplines, whether it is:
– employee of the company, with the exclusion of personnel with administrative, accounting and commercial duties,
– or in a collaborative relationship with the company (including arts and professions) on the condition that they carry out their activities in the structures of the same company.
In this case, reference must be made to the cost actually incurred by the company, meaning as such the amount made up of the gross salary before taxes and compulsory contributions, such as social security charges and welfare contributions compulsory by law, in relation to the effective use of same workers in R&D activities; of the depreciation quotas of the expenses for the acquisition or use of laboratory instruments and equipment, within the limits of the amount resulting from the application of the depreciation coefficients, in relation to the extent and period of use for the R&D activity and in any case with a unit cost not less than 2.000 euros, net of expenses relating to stipulated research contracts:
– with universities, research institutions and equivalent bodies,
– and with other enterprises, including innovative start-ups, other than those that directly or indirectly control the enterprise, are controlled by it or are controlled by the same company that controls the enterprise
Research contracts must be entered into with companies resident or located in EU member states, in countries adhering to the agreement on the European Economic Area (EEA) or in countries and territories that allow for an adequate exchange of information;
– of the technical and industrial property rights relating to an industrial or biotechnological invention, to a topography of a semiconductor product or to a new plant variety, also acquired from sources.
The eligible costs also include expenses incurred for the activity of accounting certification within the maximum limit of 5.000 euros by companies not subject to statutory auditing of accounts and without a board of statutory auditors. In order to demonstrate the eligibility and effectiveness of the aforementioned costs, it is in fact necessary that the documentation relating to them be certified.
Determination of the concession that can be granted
Based on the new provisions, the tax credit is recognized (Article 5 of the decree):
- up to a maximum annual amount of 5 million euros for each beneficiary;
- provided that in each tax period total expenses are incurred for R&D activities (in relation to which the tax relief is intended):
– at least equal to 30.000 euros,
– and these expenses exceed the average of the same investments made in the 3 tax periods preceding the one in progress as at 31 December 2015.
- To the extent:
– 50% of the annual incremental expenditure (see infra) relating to costs for highly qualified personnel and those for research contracts with universities or other equivalent bodies and with innovative start-ups:
– 25% of the annual incremental expenditure relating to the costs of laboratory instruments and equipment and industrial property rights;
The "incremental expense" is given by the difference between:
– the amount of R&D costs with reference to each group differentiated on the basis of the type of costs (and consequent measure of the rate) incurred in the tax period for which it is intended to benefit from the relief;
– the annual average of the same costs incurred in the three tax periods prior to the one in progress as at 31 December 2015 (2012-2014, for "solar" subjects)9 or in the shorter tax period starting from the date of incorporation, for companies established for less than three years.
How to use the tax credit
It is also confirmed that the tax credit (Article 6 of the decree):
- must be indicated in the Single Form relating to the tax period in which the eligible costs were incurred;
- it does not contribute to the formation of income for IRPEF/IRES purposes, nor to the IRAP taxable base
- it is not relevant for the purposes of determining the percentage of deductibility of interest expense (pursuant to Article 61, TUIR), nor with respect to the criteria for the deductibility of expenses (Article 109, paragraph 5, TUIR); it can only be used in compensation (according to the general rules pursuant to article 17, Legislative Decree no. 241/1997), starting from the tax period following the one in which the eligible costs were incurred. In practice, the first use can be made in 2016, in relation to the expenses incurred in 2015.
- It is not subject:
– the annual limit envisaged for the use of tax credits to be indicated in part RU of the Single Model, equal to 250.000 euros (pursuant to art. 1, paragraph 53, Law, no. 244/2007);
– to the general annual compensation limit in the F24 form equal to 700.000 euros (pursuant to art. 34, Law no. 388/2000);
– the prohibition of offsetting tax credits in the presence of payables entered in the tax register for tax and ancillary taxes exceeding €1.500 (Article 31 of Legislative Decree No. 78/2010)10; the tax credit envisaged for the hiring of highly qualified personnel foreseen by art. 24, Legislative Decree no. 83/2012 (see final table) (art. 9 decree).
It should be noted that unlike the original version, for the use of the contribution it is no longer necessary to send a specific electronic application, since it is an automatic facilitation (art. 3, Legislative Decree n. 145/2013).
Certified documentation of eligible costs
As anticipated, certification is required, to be attached to the financial statements, of the accounting documentation relating to the expenses incurred by the person in charge of the statutory audit or by the board of statutory auditors or by a professional registered in the statutory audit register (Article 7 of the decree).
Firms not subject to statutory auditing of accounts and without a board of statutory auditors must in any case avail themselves of the certification of a statutory auditor or a statutory auditing firm
Firms with certified financial statements are exempt from the obligations described above. The provisions of art. 64 of the code of civil procedure.
In any case, with reference to the costs on the basis of which the tax credit was determined, the beneficiary companies are required to keep all the documentation useful to demonstrate the eligibility and effectiveness of the same and, in particular:
- as far as personnel costs are concerned, the personal attendance sheets showing the hours spent in the R&D activity for each day, signed by the legal representative of the beneficiary company, or by the person in charge of the R&D activity;
- as regards laboratory instruments and equipment, the declaration of the legal representative of the company, or of the head of the research and development activity, relating to the extent and period in which they were used for the R&D activity ;
- as regards research contracts stipulated with universities, research institutions and equivalent bodies, and with other companies, including innovative start-ups, the contracts and a report signed by the aforementioned subjects concerning the activities carried out in the tax period to which the cost incurred refers.
Control by the Revenue Agency
To verify the correct use of the tax credit, the Revenue Agency carries out checks (on the basis of the accounting documentation described above), aimed at verifying the existence of the conditions for accessing the benefit, the compliance of the R&D activities and costs carried out (art. 8 decree).
If, as part of the control activities, assessments of a technical nature are necessary regarding the admissibility of specific activities or the pertinence and adequacy of the costs incurred, the Revenue Agency may request the Ministry of Economic Development to express its opinion.
Finally, if, following the checks, the undue use, even partial, of the tax credit is ascertained due to failure to comply with the required conditions or due to the inadmissibility of the costs on the basis of which it was determined, the Revenue Agency shall recover the unduly used amount, increased by the interest and penalties provided for by law, without prejudice to any civil, criminal and administrative liability (Article 3, paragraph 10, Legislative Decree No. 145/2013).
