The recent legislative changes introduced by Dlgs 139/2024 have sparked significant discussion regarding the taxation of trusts, particularly in the context of the 'Dopo di noi' provisions established by Law 112/2016.
These provisions were specifically designed to protect individuals with severe disabilities, offering them fiscal advantages such as fixed taxation rates for registration and mortgage taxes on onerous purchases by trustees, as well as income tax deductions for those contributing to the trust.
Importantly, these trusts are exempt from stamp duty on documents requested by the trustee.
Under the 'Dopo di noi' framework, the inheritance and donation tax is not applicable at the initial contribution or during subsequent contributions.
Instead, it is only levied upon the death of the beneficiary, when the remaining assets are transferred to the heirs.
This creates an 'exit' taxation mechanism, exempting all prior transactions from tax.
In contrast, Dlgs 139/2024 introduces a 'mobile' taxation mechanism, where the tax is due when beneficiaries actually acquire full and enforceable rights to the assets, as clarified by Circular 34/E/2022.
This requires a case-by-case assessment to determine when such rights are granted without trustee discretion.
For instance, clauses that stipulate periodic income distributions or asset transfers, such as a vehicle to a beneficiary upon reaching adulthood, would trigger taxation.
Despite these changes, the 'Dopo di noi' trusts remain unaffected and continue to offer significant benefits.
They are not only confirmed but also remain the most effective segregative tools for protecting individuals with severe disabilities, as outlined in Article 3, paragraph 3, of Law 104/1992.
The new 'mobile' taxation mechanism, while a step forward, introduces inherent uncertainties that could lead to disputes, unlike the clear 'exit' taxation point in 'Dopo di noi' trusts.
Additionally, the 'Dopo di noi' framework addresses the 'retrocession' of assets to the settlor, exempting these from inheritance and donation taxes and applying fixed registration and mortgage taxes.
These provisions will apply to trusts established by October 3, 2024, as per the implementing provisions to be issued by the director of the Revenue Agency.
It's worth noting that Circular 34/E/2022 had already provided clarifications for existing trusts, allowing taxpayers to request refunds for taxes paid under the previous administrative practice, which required tax payment at the trust's establishment.

insights:

The 'Dopo di noi' provisions represent a significant advancement in the protection of individuals with severe disabilities, offering a clear and advantageous tax framework. The introduction of a 'mobile' taxation mechanism by Dlgs 139/2024 aims to streamline tax processes but may lead to uncertainties and potential disputes.

issues:

The 'mobile' taxation mechanism introduces uncertainties regarding the timing of tax liability, potentially leading to disputes. The clear 'exit' taxation point in 'Dopo di noi' trusts is absent in the new framework, creating potential challenges in implementation.

practical applications:

The 'Dopo di noi' trusts can be utilized by families to ensure financial security for disabled members, taking advantage of tax exemptions and fixed rates. The new 'mobile' taxation mechanism requires careful planning to determine the timing of asset transfers to minimize tax liabilities.