23 February 2021
On Monday 15 February 2021, the Official Gazette published the implementation rules of Relaunch Decree, which came out in May 2020.
These rules essentially confirm the 50% tax break reserved for individuals investing in innovative start-ups and SMEs, and introduce ministerial provisions to make them concretely available (subject to the limitations due to the rules on state aid under the de minimis regime).
The implementing decree confirms the main aspects already present in the Decreto Rilancio:
1. The 50% tax deduction can be paid under the de minimis regime, as provided for by EU Regulation 1407/2013. The regulation provides for a maximum amount of aid granted to beneficiary companies under this title not exceeding €200,000 in three years.
2. The investment may be made directly or through collective investment undertakings that invest primarily in innovative start-ups or SMEs;
3. The 50% deduction of the investment is valid for individuals, up to a maximum, for each investor, of:
- €100,000 per year invested, and, therefore, €50,000 deducted for investments in innovative start-ups
- 300,000 Euros per year invested, and, therefore, 150,000 Euros deducted for investments in innovative SMEs.
4. The investment must be maintained for at least three years, under penalty of repayment of the amount deducted, plus interest.
5. In order to activate the concession for investors, the beneficiary company must first submit a special online application through the computer platform that will soon be activated by the Ministry of Economic Development.
At the moment there are still some points to be clarified by the administration, in particular for the application of the IRPEF deduction of 50% to investments made through equity crowdfunding portals, let's see the main ones.
How can the investor know if the company still has a ceiling available to receive investments under the de minimis regime and if it will therefore be entitled to a 50% deduction?
The implementing decree of the MISE states that interested companies must first submit the application for the activation of the facility of 50% through the platform that will be activated by the Ministry, to verify the existence of the conditions for the disbursement of the facility.
This presupposes that the company is already in possession of the investor's data, which cannot be the case for equity crowdfunding campaigns, where verification can only be made once the campaign is completed.
Will companies be able to submit the application to activate the 50% deduction at the same time as filing thelist of shareholders with the Companies Register?
How will they be able to promptly inform investors of the amount of relief that will actually be due, depending on the subscriptions of each? These are points still to be clarified.
In case of competition of many investors for a campaign of an amount higher than the ceiling of 200,000 euros, the implementing decree does not clarify whether the 50% relief should be applied to the investors who first cover the amount established by the de minimis regime or whether it should be distributed pro-rata to all participants in the campaign.
As far as investments in innovative start-ups are concerned, the 50% deduction is alternative to the 30% one. Who decides which deduction applies to the transaction (30% or 50%), and how? What information should be given to investors on the deduction applicable to the transaction?
For investments in innovative SMEs, on the other hand, the 50% deduction has priority over the 30% deduction. On the part of the investment that exceeds the limit of €200,000, only the 30% deduction is available, but always within the limits of the de minimis regulation.
In practical terms, what does the difference in the sequence of access to the benefits foreseen for investments in innovative SMEs (50% deduction with priority over the 30% deduction) mean with respect to investments in innovative start-ups (50% deduction as an alternative to the 30% deduction)? In the case of investment in innovative SMEs, if the de minimis ceiling of € 200,000 is exceeded, can the 50% deduction be applied to the first € 200,000 and the 30% to the remaining amount?
A last but very important point to be clarified concerns what amount to consider as aid falling under the de minimis regime: the whole investment or the resulting tax relief?
The 50% deduction is granted within the limits of the ceiling available to the beneficiary company in relation to the de minimis State aid received over three financial years (the maximum amount of which cannot exceed 200,000 euros).
However, since what actually constitutes aid for the company receiving the investment is the fact that it has given the investor the benefit of the 50% deduction , it might be reasonable to consider that the aid ceiling should be considered used not to the extent of the amount of the investment, but to the extent of the tax deduction due to the investor.
As a practical example, assuming that the company has not benefited from any de minimis aid in the previous three years (therefore, assuming that the entire ceiling of € 200,000 is available), the maximum amount of eligible investment for the individual operation should be € 400,000, with € 200,000 in benefits.
Also to support this line of interpretation, it is necessary that the administration provides the appropriate confirmations and instructions.
In conclusion, we take note of the implementation rules that have already come into force, which confirm the 50% tax deductions and we await further clarifications that we will communicate as soon as they are available.
We would like to remind you that a 30% tax deduction will be available for investments in innovative startups.
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