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November 1, 2023
2023-1819

Italian Revenue Agency issue draft guidelines on asset management transfer pricing to support implementation of new Investment Management Exemption Regime

  • The Italian Revenue Agency has released for public consultation a draft set of transfer pricing guidelines containing specific asset management guidance aimed at supporting the implementation of the Investment Management Exemption Regime introduced by the Budget Law 2023.
  • The draft guidance mainly addresses a requirement that for the IME to apply the Italian tax resident asset/investment manager or advisor (or the permanent establishment of the non-Italian tax resident entity) has received remuneration that is supported by Italian-compliant transfer pricing documentation.
  • The draft guidance seems to provide a hierarchy for the use of transfer pricing methods in determining the arm's-length remuneration to be recognized for an Italian tax resident asset/investment manager or advisor, or the Italian permanent establishment of a non-Italian tax resident entity, based on the type of service provided.

Executive summary

On 20 October 2023, the Italian Revenue Agency issued the draft guidelines (draft TP Guidance), in public consultation until 3 November 2023, containing transfer pricing guidelines in connection with the implementation of the Investment management exemption regime (IME). The IME was introduced by Law No. 197 of 29 December 2022 (2023 Italian Budget Law) through amendment of Article 162(6) and 162(7) of the Italian Income Tax Code (Art. 162).

Further, the Italian Ministry of Economy and Finance issued a draft Decree of 16 October 2023, available for public consultation until 27 October 2023, which mainly addressed the definition of a foreign investment vehicle and detailed certain independence requirements within the IME. (See our EY Global Tax Alert, Italian draft ministerial decree provides implementation rules for Investment Management Exemption regime, dated 19 October 2023.)

Under the new IME, which was enacted effective 1 January 2023 but is still missing detailed provisions, a foreign investment vehicle and its direct or indirect subsidiaries should be able to claim that they have no Italian dependent agency permanent establishment if the asset or investment manager, or an advisor operating in Italy on their behalf or for their benefit, can be assumed to be acting independently from them under the specific independence requirements that will be finally enacted once the consultation results are processed and a delegated decree is issued.

The draft TP Guidance addresses the requirement in Article 162, paragraph 7-quater (d) according to which one of the conditions for the application of the IME is that the Italian tax resident asset/investment manager or advisor, or the permanent establishment of the non-Italian tax resident entity (hereinafter briefly referred to as "asset/investment manager or advisor"), which carries out activities under agreement with an affiliated nonresident entity, receives, for the activity performed in Italy, remuneration supported by compliant transfer pricing documentation.

The draft TP Guidance provides guidelines for transfer pricing method selection for two broad categories of services that are generally performed within multinational asset/investment managers:

  1. Investment management services
  2. Services related and instrumental to investment management activities

Detailed discussion

Investment Management Exemption regime

The IME regime was introduced by the 2023 Italian Budget Law, which added paragraphs 7-ter, 7-quater and 7-quinquies to Art. 162 of the Italian income tax code.

Article 162(7-ter) introduced a legal presumption that, subject to the conditions laid down by the following paragraph 7-quater, a person, whether an Italian resident or a non-resident (also a nonresident operating in Italy through a permanent establishment), who habitually concludes, in the name of or on behalf of the investment vehicle or its subsidiaries, contracts for the purchase, sale or negotiation of, or contributes to the purchase, sale or negotiation of financial instruments, participations and credits, will be considered to be independent of the foreign investment vehicle.

Article 162(7-quater) provides for the conditions under which the legal presumption of paragraph 7-ter applies. These conditions are summarized as follows:

  1. The foreign investment vehicle (and its direct or indirect subsidiaries) is resident/established in a foreign State that allows an adequate exchange of information with Italy pursuant to Ministerial Decree 4 September 1996, as amended from time to time (so-called "white list").
  2. The investment vehicle qualifies as an independent vehicle under the draft ministerial decree.
  3. The asset/investment manager or advisor operating in Italy does not hold any role in the management and control bodies of the foreign investment vehicle, or any of its direct and indirect subsidiaries and does not hold an interest granting more than 25% of the profit of the foreign investment vehicle; said percentage shall be computed according to the criteria set forth by the draft ministerial decree.
  4. The remuneration received by the asset/investment manager or advisor for its management or advisory activity, where stemming from an intercompany transaction, is supported by transfer pricing documentation qualifying for local requirements under Article 1(6) of Legislative Decree No. 471 of 18 December 1997 (i.e., the penalty exemption regime in case of a transfer pricing challenge).

As anticipated, the draft TP Guidance addresses the requirement in Article 162, paragraph 7-quater (d) above.

Asset management intercompany service in scope of the draft TP Guidance

The draft TP Guidance identifies and provides guidance on the preferred transfer pricing method to be selected in two broad categories of intercompany services that are commonly observed in multinational asset management groups, which are:

  1. Investment management services
  2. Services related to and instrumental to investment management activities

Investment management services

Article 4 of the draft TP Guidance provides a broader definition of the relevant "investment management services" than the activities contemplated in the IME statutes. The activities included are:

  1. Investment management activities (e.g., buying, selling and trading of financial instruments, including derivatives and receivables, i.e., the only activities relevant for IME under Article 162)
  2. Administration of the assets raised (e.g., legal and accounting services related to asset management, provision of information to clients)
  3. Marketing activities (e.g., market solicitation and promotional activities)

For these types of services, the method deemed most appropriate by the draft TP Guidance is the Comparable Uncontrolled Price (CUP) method.

If the counterparties involved in the transaction share the assumption of the same economically significant risks or separately assume economically significant and closely related risks and the CUP method is not a reliable method for the given case, the draft TP Guidance advises to use the Profit Split Method (PSM), taking into account the contribution respectively made by the counterparties involved in the relevant transaction (i.e., considering the functions performed, the risks taken and the assets used by the counterparties involved).

Finally, the draft TP Guidance refers to the transfer pricing methods described in the OECD Guidelines and in the Decree if neither the CUP method nor PSM leads to reliable results, but excludes the use of a cost-based methodology for these types of services.

Services related to and instrumental to investment management activities

Article 5 of the draft TP Guidance describes the "services related to and instrumental to investment management activities," which in principle consist of:

  1. Activities that enable the promotion and development of the investment management business, such as financial advisory services
  2. Ancillary activities (e.g., preparation of economic studies, investment research and financial analysis, communication of economic and financial data, information technology, accounting)

For this category of services, the draft TP Guidance does not suggest that a transfer pricing methodology should be preferred over the others, specifying only that the method should be selected from one of those provided by the OECD Guidelines and the Decree, based on the circumstances of the given case.

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For additional information with respect to this Alert, please contact the following:

Studio Legale Tributario, Financial Services Office, Milan

Ernst & Young LLP (United States), Italian Tax Desk, New York

Published by NTD’s Tax Technical Knowledge Services group; Carolyn Wright, legal editor

 

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