Tax breaks

Valid only for Investors with Italian Tax Residence

Tax treatment of investments in innovative startups and SMEs

Investments in the share capital of companies are subject to the ordinary taxation rules provided in the Consolidated Income Tax Act (Presidential Decree 917/1986) for capital income.

Investments in the share capital of innovative start ups and ' eligible' innovative SMEs registered in the special section of the Register of Companies reserved for startups and innovative SMEs, respectively, benefit from the tax breaks for income tax purposes (the relief does not operate, however, for IRAP purposes) provided by Article 29 of Decree Law No. 179 of October 18, 2012, converted with amendments by Law No. 221/2012 (the "Growth Decree").

SMEs 'eligible' for the facilities.

The ministerial decree of May 7, 2019 establishes the modalities for the implementation of tax incentives for investment in innovative start-ups and innovative SMEs and, among other things, identifies the innovative SMEs that fall within the scope of the facilitation:

"eligible innovativeSMEs" means SMEs that:

(i) fall under the definition of innovative SMEs in Article 4(1) of Decree-Law No. 3 of January 24, 2015,

(ii) receive the initial investment under the measure prior to their first commercial sale in a market or within seven years of their first commercial sale.

Innovative SMEs, after the period of seven years from their first commercial sale, are considered 'eligible' as they are still in the expansion or early stages of growth:

1) up to ten years after their first commercial sale, if they attest, through an evaluation performed by an external expert, that they have not yet sufficiently demonstrated their potential to generate returns;

2) without age limit, if they make a venture capital investment on the basis of a business plan related to a new product or a new geographic market that is more than 50 percent of the average annual turnover of the previous five years, in line with Article 21(5)(c) of Regulation (EU) No. 651/2014;

Beneficiaries of the facilities

These facilities apply to individuals subject to the personal income tax, referred to in Title I, of the Consolidated Income Tax Act (the "TUIR," Presidential Decree No. 917 of December 22, 1986) and to individuals subject to the corporate income tax, referred to in Title II of the same TUIR, who make an investment in the capital of eligible startups or innovative SMEs in a tax-privileged period.

Exclusions

The tax benefits do not apply:

(a) in the case of investments made through collective investment undertakings and companies, directly or indirectly, with public participation;

(b) in the case of investments in eligible innovative start-ups or innovative SMEs that qualify as:

1) enterprises in difficulty as defined in the European Commission's "Guidelines on State aid for rescuing and restructuring non-financial firms in difficulty" (2014/C 249/01);

2) enterprises that have received unlawful state aid that has not been fully recovered;

(3) enterprises in the shipbuilding and coal and steel sectors;

(c) innovative start-ups, eligible innovative SMEs and certified incubators, collective investment schemes, and other corporations that invest primarily in eligible innovative start-ups or innovative SMEs;

(d) in the case of direct investment, or indirect investment through the other capital companies that invest predominantly in innovative start-ups or eligible innovative SMEs and whose shares are not listed on a regulated market or a multilateral trading facility, to entities that own stakes, securities or rights in the innovative start-up or eligible innovative SME that is the subject of the investment, with the exception of additional investments upon the fulfillment of the conditions set forth in paragraph 6 of Article 21 of Regulation (EU) No. 651/2014

Measure of the facilities

Individuals are entitled to deduct in their annual tax return an amount equal to 30 percent of the investment made in the capital of one or more startups or innovative SMEs up to a maximum limit of €1,000,000 annually, with a minimum investment retention period of 3 years. Companies that invest in the capital of innovative startups or SMEs are entitled to deduct from their total taxable income an amount equal to 30 percent of the investment made in the capital of one or more innovative startups or SMEs, subject to a maximum of 1,800,000 euros annually, with a requirement that the investment be maintained for at least 3 years. The amount of the benefit that is not deductible in the tax period can be deducted from personal income tax in subsequent tax periods, but not beyond the third.

EU authorization

Facilities for investment in innovative startups

The EU Commission has authorized (SA 47184) the facilities for investment in innovative startups, provided for in the 2017 Budget Law, making them permanent for the period 2017-2025, subject to the adoption by the Italian authorities by 2020 of the appropriate measures necessary to bring this scheme into compliance with the rules applicable after that year.

Facilities for investment in innovative SMEs

The European Commission announced that it authorized tax incentives for investment in the venture capital of innovative SMEs on December 18, 2018, as stated in the following communication from the Ministry of Economic Development

European Commission authorizes incentives for investment in innovative SMEs

Causes of forfeiture of the facilities

The right to the facilitation relating to the investment in startups or innovative SMEs lapses if, within 3 years from the date on which the investment is detected, one of the following causes occurs:

(a) the sale, even partially, for consideration, of the shares or units received in exchange for the subsidized investment;

(b) the reduction of capital as well as the distribution of reserves or other funds established with share premiums of the shares or units of eligible innovative start-ups or innovative SMEs or other companies that invest predominantly in eligible innovative start-ups or innovative SMEs and whose shares are not listed on a regulated market or multilateral trading facility;

(c) the withdrawal or exclusion of investors;

d) the loss of one of the requirements provided for in Article 25, paragraph 2, of Decree-Law No. 179 of October 18, 2012, by the innovative start-up

e) the loss of any of the requirements provided for in Article 4, paragraph 1, of Decree-Law No. 3 of January 24, 2015, by the eligible innovative SME,

On the other hand, transfers free of charge or due to the death of the taxpayer, as well as transfers resulting from extraordinary transactions under Chapters III and IV of Title III of Tuir do not constitute grounds for forfeiture.

For innovative startups, the loss of the requirements set forth in Article 25, paragraph 2, of Decree-Law No. 179 of October 18, 2012 due:

(i) the expiration of five years from the date of incorporation (recently extended to six years);

(ii) upon exceeding the annual production value threshold of 5,000,000 euros;

(iii) upon listing on a multilateral trading system;

(iv) the acquisition of the requirements of an eligible innovative SME, as per Article 4, Paragraph 1 of Decree-Law No. 3 of January 24, 2015.

For eligible innovative SMEs, the loss of the requirements set forth in Article 4, Paragraph 1 of Decree-Law No. 3 of January 24, 2015 due to:

(i) the exceeding of the size thresholds provided for in the Commission Recommendation of May 6, 2003 on the definition of micro, small and medium-sized enterprises (2003/361/EC);

(ii) listing on a regulated market.

Effects of forfeiture

Forfeiture, takes effect in the tax period in which one of the causes indicated in the preceding paragraph occurs and entails the obligation to return the total tax savings enjoyed as a result of the deduction or deduction previously made (with statutory interest). This is also in case of partial transfer of the investment before the three-year mandatory holding period of the investment has expired.

Application modalities of the incentives for investments in eligible startups or innovative SMEs.

Incentives for investments in startups and innovative SMEs apply both in the case of direct investments and in the case of indirect investments through UCIs and other companies that invest primarily in eligible startups or innovative SMEs.

In the Official Gazette No. 156 of July 5, 2019, the Decree of the Ministry of Economy and Finance of May 7, 2019 - Implementation Arrangements for Tax Incentives for Investment in Innovative Startups and Innovative SMEs, which contains the implementation provisions for tax incentives for investment in innovative startups and innovative SMEs provided for in Article 29 of the Decree-Law of October 18, 2012, was published.

Read the DM May 7, 2019

This decree implemented the provisions on incentives for investment in innovative startups made by individuals and legal entities contained in Article 29 of Section IX of Decree-Law No. 179 of October 18, 2012.

Read the coordinated text of Decree Law No. 179/2012 - "Growth bis Decree"

Revenue Agency Circular No. 16/E of June 11, 2014 having as its subject 'Article 25 et seq. of Decree-Law No. 179 of October 18, 2012, converted with amendments by Law No. 221 of December 17, 2012 - Tax benefits in favor of innovative startups and certified incubators' clarifies the implementation aspects of the tax benefits granted to eligible innovative startups and SMEs (and certified incubators).

See the pdf of Revenue Agency Circular No. 16/E dated June 11, 2014

Warning

Investors interested in the initiatives proposed on the portal are recommended www.mamacrowd.com to contact their tax advisors for the correct and best management of the benefits due.

MAIN FACILITIES FOR INNOVATIVE STARTUPS

Innovative startups and SMEs, in addition to the possibility of raising venture capital through online portals (a possibility extended to all SMEs that meet the parameters set by Consob Regulation 18592/2012) are allowed the following additional facilities:

• Possibility of drafting the articles of incorporation by means of standard online template making use of digital signature;
• Exemption from stamp duty and secretarial fees due for registration with the commercial register and from the annual fee to the chambers of commerce;
• Tax relief for directors, employees or collaborators remunerated through financial instruments (e.g., stock options): amounts paid in the form of financial instruments or option rights do not contribute to the formation of the recipients' taxable income;
• Exemption from compliance endorsement for offsetting VAT credits up to 50,000 euros (compared to the ordinary threshold of 5,000 euros)
• Option to extend by 12 months the period of so-called "carry-forward" of losses and, in cases of reduction below the legal minimum, option to postpone the decision on recapitalization by the end of the next fiscal year;
• Inapplicability of the rules on shell companies: the innovative SME is not required to carry out the operational test to verify the status of a non-operational company.
• Faculty to use, for innovative startups established as limited liability companies, institutions allowed only in limited liability companies, in particular, the free determination of the rights granted to shareholders or the issuance of participatory financial instruments;
• Exemption from the absolute prohibition of transactions on own equity investments if the transaction is carried out in implementation of incentive plans that provide for the allocation of financial instruments to employees, collaborators, members of the administrative body or providers of works or services, including professional ones (stock options and work for equity);
• Faculty to issue financial instruments provided with equity rights or even administrative rights, excluding voting in shareholder decisions;
• Support for internationalization, through the services made available by the ICE Agency for the promotion abroad and internationalization of Italian companies and Desk Italia;
• More possibilities in crisis management in the innovative startup enterprise;
• Possibility of hiring staff with fixed-term contracts with a minimum duration of 6 months and a maximum of 36 months extendable by another 12 months (thus reaching a total of 48 months);
• Simplified, free and direct access to the Central Guarantee Fund, the government fund that facilitates access to credit by providing guarantees on bank loans;
• research and development tax credit: A tax credit equal to 50 percent of annual increases in spending on research and development activities is granted for both intra-muros and extra-muros research costs;
• "Start up sponsor": transfer of losses of new companies to listed companies. For all companies in which at least 20 percent of the capital shares are held, the possibility of assigning, against remuneration, losses realized in the first three years of operation. In return, the company to which the losses are ceded ("sponsor") can take their amount as a deduction in the same way as for the assignment of tax credits, provided its shares are listed on a regulated market or multilateral trading system (Law No. 232 of December 11, 2016 (Budget Law 2017), Art. 1, c. 76 -80);
• Patent box: allows 50% of income from the commercial exploitation of intangible assets to be excluded from taxation.

MAIN FACILITIES FOR INNOVATIVE SMES

In summary, the following concessions are provided:

• Exemption from stamp duty: innovative SMEs are exempt from paying the stamp duty due for fulfillments related to registrations in the Chamber of Commerce Business Register.
• Derogations from ordinary corporate rules: the most significant derogations are provided for innovative SMEs established as limited liability companies, for which the following are allowed: the creation of categories of shares with special rights; the possibility of carrying out transactions on their shares; the possibility of issuing participatory financial instruments; and the public offering of capital shares.
• Facilitations in loss coverage: in the case of systematic losses, innovative SMEs enjoy a special regime on the reduction of share capital, including a one-year moratorium on the coverage of losses exceeding one-third (the deadline is postponed to the second subsequent financial year).
• Inapplicability of the rules on shell companies: the innovative SME is not required to carry out the operability test to verify its status as a nonoperating company.
• Remuneration through equity instruments: the innovative SME can remunerate its employees through equity instruments (such as stock options), and external service providers through work-for-equity schemes. A favorable tax and contribution regime applies to these instruments, i.e., they are not part of taxable income but are subject only to capital gain taxation.
• Recourse toequity crowdfunding: innovative SMEs, like innovative startups, can also initiate widespread capital raising campaigns through authorized online portals.
• Simplified, free and direct intervention to the Guarantee Fund for Small and Medium Enterprises, a public fund that facilitates bank financing by providing a loan guarantee. This guarantee covers up to 80 percent of the credit disbursed by the bank to the innovative SME, up to a maximum of 2.5 million euros, and is granted on the basis of highly simplified access criteria, with an inquiry benefiting from a priority channel.
• Support in the internationalization process by the ICE Agency: includes assistance in regulatory, corporate, tax, real estate, contractual and credit matters, free hospitality at the main international fairs and events, and activities aimed at facilitating the meeting of innovative SMEs with potential investors.
• research and development tax credit: a tax credit equal to 50 percent of annual increases in spending on research and development activities is granted for both intra-muros and extra-muros research costs;
• patent box: allows 50% of income from the commercial exploitation of intangible assets to be excluded from taxation.

All measures can be enjoyed by innovative SMEs and innovative startups following registration in the special section of the Companies Register.

New Relaunch Decree - 50 percent tax deduction

As of the effective date of Decree Law Decree No. 34 of May 19, 2020 (the "Relaunch Decree," in force since May 19, 2020, converted with amendments by Law No. 77 of July 17, 2020), an amount equal to 50 percent of the amount invested in the share capital of one or more startups or innovative SMEs directly or through collective investment undertakings that invest predominantly in startups or innovative SMEs is allowed to be deducted from IRPEF by individuals only.

This 50% deduction applies to investments in innovative start-ups/SMEs registered in the special section of the Companies' Register at the time of the investment and is granted pursuant to European Commission Regulation (EU) No. 1407/2013 of December 18, 2013 on de minimis aid (hereinafter, the "De Minimis Deduction").

Ministerial Decree implementing the 50% relief - de minimis

The implementation modalities of the new 50% de minimis relief have been set by Decree of the Ministry of Economic Development of December 28, 2020, published in OJ No. 38 of 15-2-2021, - Modalities for the implementation of de minimis tax incentives to investment in innovative start-ups and innovative SMEs (hereinafter, in short, the "DM_28_12_2020"), available by activating this link to the Official Gazette website https://www.gazzettaufficiale.it/eli/id/2021/02/15/21A00897/sg, which we invite users to consult for all details not included in this summary.

Scope of application

The deduction from the gross personal income tax under Paragraph 7, Article 38, of Decree-Law No. 34 of 2020 (the "De Minimis-Startup Innovative Deduction"), is alternative to that provided by the Ministerial Decree of May 7, 2019 on the implementation modalities of tax incentives for investment in innovative start-ups and innovative SMEs (the "30% Deduction" ) and cannot be combined with said incentive for the same financial transaction.

The deduction from the gross personal income tax provided for in paragraph 8, Article 38, of Decree-Law No. 34 of 2020 (the "De Minimis-PMI Innovative Deduction"), shall take priority over that provided for in the Ministerial Decree of May 7, 2019 on the modalities for the implementation of tax incentives for investment in innovative start-ups and innovative SMEs. On the part of the investment that exceeds the limit provided therein, only the deduction provided for in Article 29 of Decree-Law No. 178 of October 18, 2012, converted, with amendments, by Law No. 221 of December 17, 2012 (the 30% Deduction) is usable, again within the limits of the "de minimis" regulation.

Beneficiary enterprise

The beneficiary enterprise of the subsidized investment is defined as the innovative start-up or innovative SME duly registered in the special section of the business register at the time of the investment.

The investor, in order to take advantage of the 50 percent deduction, can make the subsidized investment in one or more beneficiary enterprises.

The subsidized investment can also be made by the investor indirectly through savings collective investment undertakings investing predominantly in innovative start-ups or innovative SMEs ("savings collective investment undertaking investing predominantly in innovative start-ups or innovative SMEs" means that savings collective investment undertaking established in Italy or in another member state of theEuropean Union or in a state party to the Agreement on the European Economic Area, which, at the end of the tax period current on the date when the subsidized investment is made, holds shares or units of innovative start-ups or innovative SMEs with a value at least equal to 70 percent of the total value of the assets resulting from the management statement or balance sheet closed during the aforementioned tax period)

Facilitated investment

The maximum investment in one or more innovative startups, with respect to which the investor can access the De Minimis -StartupInnovative Deduction, cannot exceed, in each tax period, the amount of 100,000 euros.

The maximum investment in one or more Innovative SMEs, with respect to which the investor subject can access the De Minimis Deduction-Innovative SMEs, cannot exceed, in each tax period, the amount of 300,000 euros.

The subsidized investment in Startups or Innovative SMEs must be maintained for at least three years, under penalty of forfeiture of the benefit.

If the tax deduction exceeds the gross income tax, the excess can be deducted from the gross personal income tax due in subsequent tax periods, not beyond the third period, up to its amount.

De Minimis Deductions do not apply:

(a) in the case of investments made through collective investment undertakings and companies, directly or indirectly, with public participation;

b) in the case of investments in innovative start-ups or innovative SMEs operating in sectors excluded under Article 1(1) of Commission Regulation (EU) No. 1407/2013 of December 18, 2013.

Date of relevance of the investment and type of eligible investments .

The De Minimis Deduction applies to cash contributions recorded under the heading of share capital and share premium reserve of shares or units of innovative start-ups and innovative SMEs, as well as to investments in units of collective investment schemes that invest primarily in innovative start-ups or SMEs (the "Investments").

The Investments are relevant in the current tax period on the date of the filing for registration in the commercial register by the innovative start-up or innovative SME of the deed of incorporation or the resolution to increase the share capital or, if later, on the date of the filing of the certification that the capital increase has been carried out in accordance with Articles 2444 and 2481-bis of the Civil Code.

Investments in units of collective investment undertakings referred to in Article 1, paragraph 7, letter e) are relevant on the date of subscription of the units.

Contributions resulting from the conversion of convertible bonds are recognized in the tax period current on the date on which the conversion takes effect.

With regard to non-resident innovative start-ups or innovative SMEs that carry out business activities in the territory of the State through a permanent establishment, the relief is due in relation to the part corresponding to the increases in the endowment fund of these permanent establishments.

Tax relief - maximum limit of aid received by the beneficiary company of 200,000 euros (the "de minimis ceiling")

The 50% Deduction is granted for investments facilitated under Commission Regulation (EU) No. 1407/2013 of December 18, 2013 on "de minimis" aid. It is entitled up to a maximum amount of aid granted under "de minimis" to the same innovative startup or innovative SME not exceeding €200,000 over three fiscal years (Article 3, paragraph 2 of the aforementioned Regulation (EU)).

In case of investment in innovative startups, the investor in each tax period can deduct from the gross tax an amount equal to 50 percent of the investment up to a maximum of €100,000, for a deduction amount not exceeding €50,000.

In case of investment in innovative SMEs, the investor in each tax period can deduct from the gross tax an amount equal to 50% of the investment made up to a maximum of 300,000 euros, for a deduction amount not exceeding 150,000 euros.

In case of investment amounting to more than 300,000 euros, on the part exceeding this limit the investor, in each tax period, may deduct from the gross tax an amount equal to 30 percent of this excess within, however, the 'de minimis' Ceiling.

Application procedure, registration and verification of 'de minimis' aid

Prior to the making of the investment by the investor, the beneficiary company submits the appropriate application online through the Ministry of Economic Development's IT platform (the "Tax incentives under the "de minimis" regime for investments in start-ups and innovative SMEs") reachable at Invitalia's website at the following link https://padigitale.invitalia.it/

The application, made in the form of a substitute declaration pursuant to Presidential Decree No. 445 of December 28, 2000, contains:

(a) the identifying elements of the beneficiary company, the investor and, in case of indirect investment, the collective investment undertaking;

(b) the amount of the investment that the investing entity intends to make;

(c) the amount of the deduction the investor intends to claim.

The Ministry of Economic Development verifies through the National Aid Register the beneficiary company's compliance with the "de minimis" ceiling by notifying both the beneficiary company and the investor subject of the results of the assessment.

The negative outcome of this assessment is an impediment to the finalization of the submission of the application and the consequent use of the incentive.

In the event of an assessment of partial use of the ceiling of 200,000 euros for "de minimis" aid already obtained in the period in question by the enterprise concerned, the same enterprise is required to submit a new application, with the same telematic modalities, indicating the amounts recalculated for the purposes of compliance with the aforementioned ceiling.

For investments made during the year 2020, for the purposes of recognition of the incentive in the hands of the investor, the beneficiary company may submit the application after the investment itself, provided that it is made in the period between March 1 and April 30, 2021.

By the Ministry of Economic Development, a list of beneficiary enterprises that have filed for and investors that intend to take advantage of the tax deduction, with the relevant amount, is sent periodically to the Revenue Agency.

In case of changes in the subsidized investment and the deduction that can be used, the beneficiary enterprise is required to promptly communicate any update through the platform, for the purpose of recalculating the amount of aid granted under "de minimis", under penalty of not being able to use the De Minimis Deduction.

The Circular of the Ministry of Economic Development dated February 25, 2021 ( diposnibile in this link to the MISE website https://www.mise.gov.it/index.php/it/impresa/competitivita-e-nuove-imprese/start-up-innovative/incentivi-de-minimis, to which reference is made for details not included in this summary) establishes the operational provisions for access to and operation of the IT platform for "Tax incentives under the "de minimis" regime for investments in start-ups and innovative SMEs" referred to in Article 5, paragraph 2, of the aforementioned December 28, 2020 decree.

Conditions for taking advantage of the tax break

The use of the De Minimis D eduction is indicated by the investor in the tax return for the tax period in which the investor made the investment in the beneficiary enterprise.

The De Minimis D eduction is available on condition that investors receive and keep a statement from the legal representative of the beneficiary enterprise, made pursuant to Articles 46 and 47 of Presidential Decree No. 445/2000, according to the model set forth in DM_28_12_2020 , to be issued within thirty days of the contribution, certifying the amount of the investment, the COR code issued by the National Aid Register, and the amount of the deduction that can be used.

In case of investment through OICRs, the possession of the requirements of the OICR necessary for the issuance of the allowance and the amount of the facilitated investment is certified, upon the investor's request, by the same OICRs, within the deadline for the submission of the income tax return for the tax period in which the investment is intended to be made.

If the exercise of the innovative start-ups, innovative SMEs or UCIs with the investor's tax period and the investor receives the certification in the tax period following the tax period in which the investment is intended to be made, the De Minimis Deductions shall apply from that subsequent tax period.

Forfeiture of tax benefits

The right to the De Minimis D eductions lapses for the investor if, within three years from the date on which the investment is detected, there is:

(a) the sale, even partially, for consideration, of the shares or units received in exchange for the subsidized investments;

(b) the reduction of capital as well as the distribution of reserves or other funds established with share premiums of the shares or units of innovative start-ups or innovative SMEs;

(c) the withdrawal or exclusion of investors (both 'direct' investors and, in the case of indirect investment, UCIs that invest primarily in innovative startups or SMEs).

d) the loss of one of the requirements provided for in Article 25, paragraph 2, of Decree-Law No. 179 of October 18, 2012, by the innovative startup, according to the results of the periodic update of the section of the business registry;

e) the loss of any of the requirements set forth in Article 4, Paragraph 1, of Decree-Law No. 3 of January 24, 2015, by the eligible innovative SME, as evidenced by the periodic update of the section of the business register.

The following shall not be considered causes for forfeiture of the facility:

(a) transfers free of charge or by reason of death of the taxpayer, as well as transfers resulting from the extraordinary transactions referred to in Chapters III and IV of Title III of the Tuir; in such cases, with the exception of transfers by reason of death, the conditions provided for the eligibility for the De Minimis Deductions must be verified as of the date on which the subsidized investment was made by the transferor;

(b) the loss of the requirements provided for in Article 25, paragraph 2, of Decree-Law No. 179 of October 18, 2012, by the innovative start-up due to (i) the expiration of the term provided by the regulations for remaining in the special section of the Companies Register, (ii) or the exceeding of the annual production value threshold equal to euro 5.000.000, (iii) to the listing on a multilateral trading system, (iv) or the acquisition of the requirements of innovative SME, referred to in Article 4, paragraph 1, of Decree-Law No. 3 of January 24, 2015;

(c) the loss of the requirements under Article 4, Paragraph 1, of Decree-Law No. 3 of January 24, 2015, by the eligible innovative SME due to listing on a regulated market.

Effects of forfeiture and controls

If the Internal Revenue Service ascertains, as part of its ordinary control activities, including on a sample basis, any undue use of the De Minimis Deduction, in whole or in part, it shall recover the relevant amount, plus interest and penalties according to law except as indicated in the next paragraph.

In the tax period in which the forfeiture of the incentive occurs, the person liable for personal income tax who has benefited from the incentive shall increase the gross tax for that tax period by an amount corresponding to the De Minimis Deduction actually enjoyed in the previous tax periods increased by statutory interest. The relevant payment is made by the deadline for the final payment of personal income tax