According to Ruling No. 9 issued by the Italian Tax Authorities on 17 January 2006, a company that transferred its residence from Spain to Italy during 2004 is subject to Italian corporate income tax (IRES) as of the date of the relocation, because the moment of the effective new resident status is the date of deregistration from the Spanish register of companies and the transfer of effective management to Italy. Details of the ruling are summarized below.
A Spanish company transferred its residence from Spain to Italy during 2004. The transfer was realized by two steps: (i) the deregistration from the company register of Spain and the transfer of effective management to Italy in the first half of 2004; and (ii) the new registration in the Italian company register in the second half of 2004.
The taxpayer argued that the relevant moment of the new residence status is the registration in the Italian company register and argued that:
|-||it had to be considered as non-resident in Italy for fiscal year 2004 because, according to Italian tax law, non-resident companies are those, which for the greater part of the tax year (i.e. 183 days or more), do not have their legal seat, place of effective management or main business purpose in Italy; and therefore|
|-||it had to be exempt from IRES in 2004|
The tax authorities ruled that according to Italian and Spanish legislation, when a company transfers its residence from Spain to Italy, there is no need for a new incorporation procedure of the company in Italy because a legal continuity status is realized. When there is a legal continuity status, the company is considered fiscally resident in Italy from the moment in which its legal seat, place of effective management or main business purpose is effectively located in Italy (rather than the moment of the registration in the Italian company register).
The date when the company became an Italian resident company was the date of deregistration from the Spanish company register and the transfer of effective management to Italy. The company is considered fiscally resident in Italy since the first half of 2004 and accordingly subject to IRES.