For months there has been talk of a measure to encourage the repatriation of capital from abroad. Prime Minister Letta reiterated shortly before Christmas that the provision would be implemented shortly and announced his imminent trip to Switzerland to define the details. However, the provision does not seem to have found a place in the "milleproroghe" decree. There is therefore still uncertainty as to what its contents will be. On the other hand, it seems that the Government is relying heavily on the resources that it should guarantee starting this year, to allocate them to the reduction of the tax wedge. It is therefore essential that potential interested parties – who still seem to be many, despite the two "shields" of 2009 and 2001 – are quickly put in a position to know with certainty the burden to bear in order to regularize their position.
And here difficulties arise that perhaps explain the long gestation. Technically, a measure like the "shield" is relatively simple to devise. Since it is based on the principle of "forgiveness" of irregularities committed up to the moment of repatriation ("no questions asked"), it is sufficient to define the percentage to be paid by the taxpayer on the value of the repatriated assets and the game is done. The voluntary disclosure, on the other hand, does not involve any amnesty and is based on the principle that, following the self-report, the taxpayer must pay the taxes that he would have paid in the tax periods still open if he had held the foreign assets "in the clear" (plus interest ). The reward for self-reporting consists of a discount on the sanctions and non-criminal punishment.
On the basis of the advances known at the moment on the contents of the provision, however, it seems that these principles will find application not through simple and clear rules dictated to the specific purpose but, rather, through a reference to a group of complex rules already in force, the application of which could moreover be in part left to the discretion of the administration to which the taxpayer self-reports.
There are two types of violations related to the failure to declare availability abroad. The first is the non-declaration itself, ie the omitted indication of availability in part RW, regardless of whether or not the availability produced taxable income. The second is instead the non-payment of taxes in Italy on the income generated by disposable income, income which, moreover, is merely contingent. The sanctions for violation of the declaratory obligation – as is known – have already been subject to reduction with the 2013 European Law, while for the omitted payment of taxes, numerous sanctioning provisions of general application, scattered throughout the legal system, are in force. According to what is known at the moment, the discount on both types of sanctions would be achieved through a dual mechanism. In the first place, the sanctions that the administration would impose following the taxpayer's self-report should be determined in half of the so-called statutory minimum (the minimum sanction foreseen for a given violation), provided that the funds are transferred to Italy or to another EU country o adhering to the European economic area (otherwise the reduction stops at three quarters of the statutory minimum). Secondly, the taxpayer would benefit from a further discount through the so-called facilitated definition, which would allow him to extinguish the dispute resulting from the self-report with the payment, in addition to the taxes evaded, of an amount equal to one third of the penalties determined as mentioned or, in any case, of an amount "not less than one third of the statutory minimums envisaged for the most serious violations relating to each tax" or "if more favourable, one third of the sum of the most serious sanctions".
The application of this mechanism must therefore be preceded by an act with which the administration, having examined the "history" of the activities emerging through a comparison (initially anonymous) with the professional appointed by the taxpayer, determines their taxability backwards to then calculate the sanctions that can be imposed, to be reduced according to the first part of the mechanism. And here the difficulties begin. If the determination of the sanctions for failure to indicate in the RW part, being unrelated to an evaded tax, can be relatively easy, the same cannot be said when it comes to determining sanctions for the evaded taxes, which must be calculated commensurately with the amount of the same. This amount will depend on the type of investment in which the foreign availability consists: for example, real estate, government securities, shares, bonds, investment funds, etc.. The proceeds of each type are subject to different amounts of withdrawals, which for junta have changed over the years. Furthermore, a rule (art. 1, Legislative Decree 471/97) provides that the sanctions relating to income produced abroad are, in general, increased by one third. If investments and assets of a financial nature held in black-listed countries (including Switzerland) are at stake, other rules (art. 12, DL 78/2009) establish that they are presumed to be established with income deducted from taxation in Italy , unless proven otherwise by the taxpayer, and furthermore that the sanctions and limitation periods for the assessment are doubled. It is questionable, however, whether these rules can apply for the years prior to their entry into force (2009). Another rule (art. 6, DL 167/90) provides for a presumption of profitability equal to the official reference rate of foreign financial assets, but it is not clear what the tax rate on the presumed income would be, nor is it certain that the taxpayer "in disclosure" can invoke its application. Yet another rule (art. 12, Legislative Decree 472/97) deals with "serial" violations (which by definition could be considered configurable when the assets have been held abroad for several years, i.e. in almost all of the cases), ruling that "when violations of the same nature are committed in different tax periods, the basic penalty is applied (for a single period) increased by half to triple". Even the applicability of this rule (so-called juridical cumulation) is not certain.
It seems that the provision in the making will not deal with clarifying the application methods of these and other relevant regulations, entrusting the task to a subsequent provision of the Director of the Revenue Agency. What is certain is that, at the moment - except for the purely academic case of a taxpayer who has held a certain sum abroad for 10 years in a non-interest-bearing account without ever having made any payments or withdrawals, in which case the penalties could easily be calculated — any taxpayer animated by good intentions but whose foreign assets have a more varied history, in order to calculate the cost of regularization would be forced, together with the consultant he has entrusted, to face the labyrinth of rules typical of our tax legislation, with possible discouraging effects. For the voluntary disclosure to bring the desired results in a short time, it would perhaps be good to consider the rapid issuing of regulations for the flat-rate simplification of both foreign income and sanctions, as has been done in other countries, without prejudice to the basic principle that the taxpayer, unlike what happened with the "scudi", must pay the taxes in full as if he had held the foreign assets "in the clear".
