From a studio associated with a tax-exempt joint stock company. The transition from groups of professionals subject to Irpef to companies subject to the corporate income regime can take place under a tax neutrality regime; not taxable i to be repaid to the customer for expenses incurred on his behalf and consequent non-deductibility of the same expenses; these, in addition to the affirmation of the principle of all-inclusiveness and the coordination of the temporal attribution of income between compensation received and withholdings made by clients, are the main innovations of the draft legislative decree approved in the Council of Ministers of 30 April last, implementing the fiscal delegation on the subject of Irpef and Ires revision.
It is article 6 of the draft decree that rewrites, from top to bottom, the regulations of self-employment income; on the one hand, the principles dictated by the tax delegation are set out and on the other, some cases which up to now have been governed by interpretation which in past years had contributed to making the matter very slippery are definitively clarified and transfused into regulatory provisions.
The explanatory report underlines in several points the desire to bring the methods of determining self-employment income closer to those of business income. In this direction, for example, the cited principle of all-inclusiveness allows for the purposes of self-employment income to be given relevance to income components which within the scope of business income constitute active and passive contingencies in the strict sense and, in particular, to those which constitute adjustments, increasing or decreasing, of positive and negative components which contributed to forming the income of previous tax periods.
In this sense, while remaining as a beacon the cash principle (apart from some elements such as depreciation, leasing fees, severance pay), this criterion is derogated by introducing the second period of paragraph 1 of the new article 54 of the TUIR, according to which the sums and values generally received in the tax period following that in which the same were paid by the withholding agent are attributed to the tax period in which the obligation on the part of the latter to carry out the withholding exists.
Transfer of customers
The principle of all-inclusiveness also concerns particular cases of transfer of the professional firm, better known as transfer of clientele. From a formal point of view, paragraph 1-quater of article 54 of the TUIR has been eliminated, relating precisely to the taxation of fees received following the transfer of customers or intangible elements, in any case, referable to the professional activity; this is because, precisely, the taxation of these elements is implicit in the principle of all-inclusiveness. At the same time, separate taxation is envisaged for these components with the modification of letter g-ter) of article 17, paragraph 1, of the TUIR as long as they are received in a single tax period, even in several tranches; moreover they benefit from separate taxation also capital gains deriving from the transfer for consideration of shareholdings in associations, companies and entities in any case relating to the artistic or professional activity carried out. Capital gains relating to shareholdings not related to artistic or professional activity remain, naturally, productive of various incomes.
Expenses incurred on behalf of the customer
Paragraph 2 of article 54 of the TUIR provides for the exclusion of certain hypotheses from the contribution to the formation of income; among these the novelty is constituted by the reimbursement of expenses incurred by the professional for the execution of an assignment and analytically charged to the client.
The expressed desire is to prevent professionals from having to consider such reimbursements as compensation which in reality do not constitute any increase in wealth. Even more so since professionals must also have a withholding tax applied to these sums when charging them.
Necessarily, given the non-taxability of chargebacks, the non-deductibility of the expenses incurred is expected. Thus the analytical reimbursements, for example, of travel, transportation, food and accommodation expenses will be irrelevant for the purposes of determining the income from self-employment, as these sums do not contribute to the formation of the income both on the active side (with consequent inapplicability of the withholding by the client) and on the passive side (with consequent non-deductibility of the expenses incurred which are subject to reimbursement) .
But what happens if these expenses advanced by the professional are not reimbursed by the client? Consistently, the decree provides for a regulation similar to that of deductibility of losses on credits provided for business income. Expenses not reimbursed by the client become deductible if the client has activated an insolvency or quasi-insolvency procedure referred to in the crisis code (with detailed identification of the relevant moment for each procedure), if there has been an unsuccessful individual procedure (foreclosure) or if the prescription of the corresponding credit has been completed.
With an appropriate closing rule, then, it is expected that, for expense reimbursements of an amount not exceeding 2,500 euros, deductibility is automatic if the client has not made payment within one year of their invoicing.
Capital gains and losses
Again with the aim of bringing self-employment income closer to business income, the decree intervenes on the determination and taxation of capital gains realized by professionals. Particularly appropriate is the provision relating to limited deductible goods such as cars or telephone equipment. For these assets, as envisaged for business income, capital gains and losses are recorded in the same proportion existing between the amount of tax-deducted depreciation and the total amount carried out. That is to say that not all of the capital gain will be taxable but only that relating to the cost of the tax-deductible asset. The regulations relating to the business income are also drawn from financial leasing contracts both movable and immovable property. Well, in the case of transfer of said contracts, the normal value of the asset net of the price established for the redemption and the fees relating to the residual duration of the contract, updated to the date of the transfer itself, contributes to forming the income.
A difference that remains with business income is that relating to the impossibility, for the professional, of paying the capital gains realized in instalments; the cash principle imposes, in fact, full taxation in the collection exercise.
Depreciation, some immediate measures
While waiting for a specific delegated decree reserved for real estate, some measures relating to depreciation of movable assets are adopted immediately. Also for professionals, the reduction by half of the deductible depreciation quota in the first tax period will be applicable as well as the deductibility of the residual cost of the asset not yet fully depreciated, in the event of its elimination from the activity. With regards to expenses relating to the modernisation, restructuring and extraordinary maintenance of the instrumental properties and for those used promiscuously, their deductibility is envisaged (in full or equal to 50 percent for properties for mixed use), to be distributed in constant installments in the tax period in which they are incurred and in the following five (see art. 54-quinquies, paragraphs 1 and 2, last sentence).
Simplifications also regarding expenses relating to ordinary maintenance of real estate used in carrying out the business. These remain deductible (in full or equal to 50 percent for properties for mixed use) in the financial year in which they are incurred, according to the cash criterion; the current criterion (too onerous for professionals) is thus abandoned, which provides for the deductibility of such expenses, in the tax period in which they are incurred, within the limit of 5 percent of the overall cost of all depreciable tangible assets, as it appears at the beginning of the tax period from the accounting records, and for any excess, in constant quotas over the five subsequent tax periods.
Even for intangible assets, the main innovations originate from the regulation of business income. In analogy with article 103 of the TUIR, it is expected that the amortization quotas of the cost of the rights to use intellectual works, industrial patents, processes, formulas and information relating to experiences acquired in the industrial, commercial or scientific field are deductible to an extent not exceeding 50 percent of the cost. The deduction of customer acquisition costs and intangible elements relating to the name or other distinctive elements of the professional activity is also regulated. For these intangible elements, the deductibility of the amortization quotas of the related cost is envisaged in an amount not exceeding one eighteenth of the cost itself, in consideration of their substantial comparability to company trademarks or the value of goodwill.
Tax neutrality for the transformation of studios into companies between professionals
The implementation of the principle of delegation which calls for the fiscal neutrality of the aggregation and reorganization operations of professional firms, including those concerning the transition from professional associations to companies between professionals, is highly awaited and appropriate.
More generally, article 177-bis of the TUIR now regulates the taxation of extraordinary operations carried out by entities carrying out professional activities.
The basic principle states that i contributions to the company for the exercise of professional activities regulated in the professional register system (Società Tra Professionisti) are not considered realizable and therefore do not constitute the realization of capital gains or losses. The contribution may include tangible assets (goods, receivables, inventories) and intangible assets, including customers and other intangible items, as well as liabilities.
Similarly to what happens in the corporate income regime, fiscal neutrality is conditional on the fact that the transferring party assumes, as the value of the shares received, the algebraic sum of the fiscally recognized values of the contributed assets and liabilities and the transferring party takes over the position of the conferring party in relation to what was received, resulting in the data shown in the accounting records and the fiscally recognized values from a specific reconciliation statement of the tax return. Tax neutrality applies to different types of transactions.
The discipline is also applicable to transformations, mergers and splits of companies between professionals, as well as to the same operations of professional associations or simple companies referred to in article 5 of the TUIR and between companies between professionals and professional associations or simple companies referred to in article 5 of the TUIR.
It is also envisaged that the transition from the self-employment income regime to the business income regime (and vice versa) is implicit in the extraordinary operations does not result in skipping or duplication of imposition. This is guaranteed by the provision according to which the positive and negative components that have already contributed to the formation of the income before the operation do not assume relevance in determining the income of the tax periods following the operation itself.
An important clarification concerns the tax coordination in the transition from a cash regime (self-employment) to an accrual one (business income). Well, the members who have not yet contributed to the determination of self-employment income according to the cash criterion will contribute to the determination of business income at the time of the financial manifestation. This is the case of a credit not yet collected at the time of transformation which will contribute to the determination of the income at the time of collection.
All rights reserved
2024-05-05 22:54:07
#AMPAssociate #studies #transformations #taxexempt #jointstock #companies
