07 dic 2024
The recent amendment introduces an alternative taxation option for trusts, allowing the choice of tax payment at the time of asset transfer or succession opening.
This innovation, however, raises questions about its applicability to 'Dopo di noi' trusts, which aim to protect severely disabled beneficiaries.
The lack of explicit reference to 'Dopo di noi' in the new provision creates ambiguity, despite the potential benefits of locking in current tax rates and exemptions.
This analysis explores the implications, potential issues, and practical applications of this legislative change.
The introduction of a new taxation option in the realm of trusts and other destination constraints marks a significant shift in legislative approach. The newly added Article 4-bis, paragraph 3, provides an alternative criterion for applying inheritance and donation taxes. It allows the settlor or trustee to choose between paying the tax at each asset or rights transfer or at the succession's opening. This choice represents a groundbreaking change, effectively legitimizing the selection of the tax imposition moment. However, the applicability of this option to 'Dopo di noi' trusts remains unclear. Although the option is expressed in general terms, it does not explicitly reference the 'Dopo di noi' law, unlike paragraph 1, which aims to confirm the applicability of special provisions under Law 112/2016. This lack of reference does not enhance the clarity of the legislative text. From a normative coherence perspective, it is argued that 'Dopo di noi' trusts should also be granted the option for 'entry' taxation, as there is no apparent reason to discriminate against a tool designed to protect the most vulnerable groups. Even though 'Dopo di noi' operates under an exemption regime, exercising the option could be advantageous by locking in current exemptions and rates, preventing potentially higher future taxes when assets are transferred to the beneficiary's heirs. The new paragraph 3 stipulates that rates and exemptions consider the relationship between the settlor and beneficiary at the time of transfer or succession opening. If this relationship cannot be identified, the tax is calculated at the maximum rate without exemption. In 'Dopo di noi' trusts, the beneficiary is always identified as the severely disabled person, making the exercise of the option straightforward, particularly in securing the highest exemption of 1.5 million euros for severely disabled individuals. Notably, there have been no changes to the determination of inheritance and donation taxes. As before, exemptions and rates are based on the relationship between the settlor and each beneficiary: a 1 million euro exemption and 4% rate for spouses or direct descendants; 100, 000 euros and 6% for siblings; no exemption and 6% for other relatives up to the fourth degree or in-laws; and an 8% rate in all other cases. The exemption increases to 1.5 million euros for beneficiaries with certified severe disabilities.