Resident or Domiciled in Italy for tax purposes?

Are you resident or domiciled in Italy?

In this article, we compare being resident or domiciled in Italy and explore the tax implications.

According to Italian tax law, individual tax residency is pursuant to tests. An individual may find themselves tax resident although they only have relatively minor contacts with Italy. This might be property ownership, frequent visits to the country, or business interests in Italy.

If the Italian tax authorities determine that an individual is tax resident in Italy, the taxpayer is subject to worldwide taxation in Italy.

Tax would therefore be applicable for both income and estate tax purposes. It would include an obligation to report all assets wherever they are in the world. In addition to financial assets and accounts, it requires an individual to report all non-financial assets such as, cars, houses, planes, artworks.

Non-Italian nationals with interests in Italy should pay particular attention to these matters to avoid becoming an unintended Italian tax resident. Because this is a complex topic and, each case is different, we recommend that you seek advice and guidance from your lawyer and accountant.

Applicable tax laws determine whether an individual is resident or domiciled in Italy

Domicile

Domicile is generally determined by an individual’s intention to permanently or indefinitely reside in Italy. Often, an individual will physically have a presence in the country. Domicile is a legal concept. Its rules have been established by way of case law rather than a statutory definition. There are three types of domicile.

Domicile of Origin

This is usually acquired from an individual’s parents.

Elected Domicile

By actually residing in Italy, the individual demonstrates the intention of remaining permanently or indefinitely in Italy. In this way, an individual may acquire an elected domicile – also known as a domicile of choice. Where an individual later gives up elected domicile, domicile of origin is automatically re-acquired.

Domicile of Dependency

This is the domicile a minor holds. When the minor reaches 18 they then acquire elected domicile.

Residence

Domicile takes into account subjective elements of an individual’s intentions. The country where an individual habitually lives determines residence.

The EU test for habitual residence is based on an individual’s interests rather than by a particular duration of residence. In 2014, the European Commission published a practical guide on the Habitual Residence Test.

Fiscal implications

Under Italian tax law, three alternative tests determine an individual’s tax liability in Italy. The tests are registration, residence and domicile. If an individual meets one of the three tests for more than 183 calendar days per annum, this triggers an Italian tax liability.

Registration test

This is a straightforward test. If an individual has registered as a resident with their local municipal office – in the comune where the individual’s residential address is located, they are liable to pay tax in Italy.

Residence test

The residence test comprises two components.

The first component looks at whether physical presence in Italy is regular and continuous, as opposed to sporadic and occasional. If an individual spends time both in Italy and another country, periods of presence outside of Italy are compared with the periods of presence in Italy. This ascertains where presence is prevalent for tax purposes.

The second component of the residence test is more subjective. It is based on an individual’s intention to stay and live in Italy for the foreseeable future. A variety of aspects will determine an individual’s intention to live in Italy on a regular basis. In order to determine intentions, authorities will look at an individual’s conduct, social and personal habits. Authorities will also consider working relationships, family relationships, business and personal activities.

Italian tax liabilities arise if an individual’s physical presence in Italy is prevalent compared to an individual’s presence outside of Italy. For example, a regular and continuous presence in Italy is deemed to exist even if an individual travels abroad on a frequent basis. In other words, if an individual is away from Italy for extended periods of time but then returns as soon as possible. This would denote that an individual maintains Italy as the principal centre of their social and family relations.

Domicile Test

This third test aims to define the place where an individual has their principal centre of interests for business and or social reasons. In this context, ‘interests’ include personal, social, moral, familiar, economic, professional and business interests and relationships.

The domicile test revolves around an individual’s intention to establish and maintain their main centre of relations and interests in Italy.

There are tax implications based on the nature, extent and quality of the connections between an individual and Italy, compared with an individual’s connections with any other country.  As a result, an individual who primarily lives abroad but, maintains their principal centre of interests in Italy satisfies the domicile test.

The domicile test therefore requires careful and comparative evaluation to balance all the facts related to business or personal relationships and connections with Italy.

Case Law regarding the legal concept of domicile

In 2011, the Italian Supreme Court referred to a 1991 decision of the European Court of Justice relating to a non-tax matter. The Italian Supreme Court concluded that, in the case of multiple relations and ties with different countries, where the location of the principal centre of an individual’s interest cannot easily be determined, a prevalent consideration should be given to the relations of a personal nature.

However, more recent decisions suggest that extensive economic interest may outweigh personal connections in establishing an individual’s domicile. Thus, an individual may still be liable to pay tax in Italy.

In a ruling in April 2012, the Italian Supreme Court held that a tennis player living in Monaco qualified for tax residency in Italy. This, despite the family proving that they lived in Monaco. They provided proof through children’s school attendance records, household utility bills, membership of local clubs. The ruling took into consideration the fact that the tennis player maintained significant interests and management positions at several family-owned Italian companies. The individual mainly managed these matters from Italy.

In this case, residence identified the taxpayer’s habitual and regular place of living, while domicile identified the taxpayer’s main center of personal, financial and business interests.

Resident or domiciled. Tax guidance

The Italian tax authorities have issued specific guidance on determining whether individuals are resident or domiciled in Italy. Circular n. 304/E of December 2, 1997. Circular 304 provides instructions for the tax agency’s control and audit activities, which should include the collection and review of the following.

– All information contained in the tax agency data base system.

– Copies of all public documents relating to purchases. This includes real estate, gifts, formation of companies and entities, capital contributions to companies and entities.

– All information on transfers of money from or to foreign countries.

– Information regarding the taxpayer’s family relations in Italy.

– The taxpayer’s economic interests in Italy.

– Information about taxpayer’s intention to remain and live permanently in Italy.

Finally

De Tullio Law Firm specialises in Italian and international property law. We have over 55 years of helping overseas nationals obtain Italian residence. If you need help or would like to discuss your situation, please get in touch with us.

 

You may like to read How to get a mortgage in Italy

Accepting Or Renouncing Italian Inheritance

Inheriting an Italian estate

Under Italian inheritance law, beneficiaries not only inherit a share of the deceased’s estate, they are also liable for any debts. If debts exceed the value of assets, heirs may choose to waive their inheritance. In this article, we discuss renouncing or accepting Italian inheritance.

How does accepting an Italian inheritance work?

The beneficiary can accept to be an heir expressly or tacitly. In either case, the beneficiary must accept within 10 years from the opening of the succession process. 

When the beneficiary declares to accept the status of heir they need a notarial or a private deed. 

When someone acts in such a way that the acceptance can be implied or inferred it is referred to as Tacit acceptance

The acceptance can also be reserved. This way, the successor reserves the right to accept or renounce an Italian inheritance until such times as they are able to ascertain whether debts or liabilities on the assets exceed the value of the property the beneficiary is inheriting. In this way, the heir is able to discharge themselves from paying any outstanding debts by renouncing an inheritance in favour of creditors and legatees.

Usually, an heir renounces an inheritance if the decedent’s debts exceed the value of the assets. The heir must pay the decedent’s debts up to the value of the property they inherit.

Renouncing an Italian inheritance

For the beneficiary to renounce an Italian inheritance they must make a  statement in front of a Notary Public or at the chancery of the court where they opened the succession procedure (“volontaria giurisdizione” section). The Notary Public or the court clerk then record a renouncement.  The beneficiary must renounce within 10 years of the opening of an Italian succession procedure.

Finally …

At De Tullio Law Firm, we have published a Guide to Italian Inheritance, which we hope you will find useful. 

If you are a beneficiary to an Italian inheritance, it is always advisable to consult a competent independent professional. A lawyer can provide information about debts and charges on inherited assets. A lawyer will also provide advice regarding renouncing or accepting Italian inheritance. This way you can make an informed decision about how to proceed. 

Each case is different so, if you would like to contact us for a free consultation about your Italian inheritance matter, please get in touch.

Parental Rights in Italy – Italian Family Law

In Italy, children have the right to a personal relationship with both parents

It is important to understand parental rights in Italy for those living or moving to the country. That way, if you have children, you can be in the best position to make decisions for the future.

All EU countries recognise that children have the right to a personal relationship and direct contact with both parents. This also applies if the parents live in different countries.

What about parental rights in Italy in the event of divorce or separation?

It is important to determine whether the children will live exclusively with one parent or alternate between parents.

If both parents live in Italy but are unable to reach an agreement, you may have to take the matter to court. A judge will then decide on living arrangements and parental rights. The court’s decision will consider the child’s best interests and determine your custody rights. It will also decide where the child resides.

In situations involving more than one country where, for example the parents live in different countries, the courts responsible for handling cases of parental rights are those in the country where the child is habitually resident. You can agree with your spouse that the court ruling on your divorce should also rule on parental rights.

Where the child has more than one nationality, the law of the country with which the child has the closest connection applies. Under section 19 of of Act No 1995/218, if the child has more than one nationality and one of these nationalities is Italian, the Italian nationality takes precedence. It is the nationality of the child at the point the case goes to court that decides this.

Parental rights in Italy: 3 types of child custody

1. Exclusive custody – one parent has sole custody and makes all day-to-day parenting decisions. The other parent has limited responsibilities.

2. Joint custody – gives both parents equal parental responsibilities and custody. However, in the interests of the child or children, they are likely to live predominately with one parent. In theory, this approach is the best for a child as they have access to both parents.

3. Alternating custody – means both parents can exercise their parental responsibilities within predetermined custodial time periods given. (This form of custody is rare).

Cases where the judge grants exclusive custody to one of the parents have become rare in Italy. Sole custody would require proof that it would be in the best interests of the child.  However, even in cases of sole custody, both parents will need to consult on major decisions relating to the child. Moreover, in cases where joint custody is applicable to disputing parents, visiting arrangements and a timetable will be established. Similar to exclusive custody cases, these arrangements give the parent that does not reside with the child or children limited access rights.

Marriage and registered civil partnerships

in order to determine parental rights in Italy, married or registered couples, will have been legally separated for six months and must have filed for divorce. They will need to go to court regarding both their divorce settlement and arrangements for their child or children. Following divorce, the child will live according to care arrangements determined by the court.

Unmarried couples and partners

In the case of unmarried couples, or estranged married couples, there is no requirement to go to court. Parents can simply agree between themselves on parental responsibilities and living arrangements. However, we strongly recommend seeking legal advice to formalise and record arrangements. Within the EU, a married father has the same rights as the mother. Where a couple cannot agree arrangements between themselves, the court in the child’s country of habitual residence determines parental rights and responsibilities.

In theory, both parents have equal parental rights and responsibilities for their child or children. In practice, however, where there is no legitimate reason otherwise, the mother’s home is more likely to be the main residence of the child.

Same-sex couples

On the subject of same-sex couples, a 2013 Italian Supreme Court decision (601) granted sole custody of a child from an earlier marriage to a mother living with another woman. The court declared that, “there is no scientific certainty proving that a minor cannot grow up in a balanced way within a same sex couple”. 

Parental rights in Italy in adoption cases

The Italian law has always stipulated that a couple must be married in order to adopt a child. Italian law 184/1983 governs adoption and foster care. The law, in principle, only permits married couples, who must be of the opposite sex, to adopt. According to the law, there are no restrictions on foster care. In a limited number of situations, the law provides for adoption in certain cases by a single person. In addition, some courts have interpreted this to include the possibility of unmarried couples adopting a stepchild.

From an inheritance point of view, no distinction is made between legitimate, natural and adopted children – all have equal rights.

Finally …

If you would like to discuss your personal situation, you can reach us here for a free consultation.

 

You may also be interested in Italian divorce law and EU regulations.

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