Organizing generational transitions is currently advantageous from a tax and corporate perspective, but there are some concerns on the horizon. The Constitutional Court (judgment 120/2020) has warned the legislator about the inappropriateness of maintaining the current favorable regime provided for in Article 3, paragraph 4ter of the consolidated tax laws. Indeed, under the current tax regime and with certain corporate arrangements, not only is it possible to anticipate generational transitions at zero cost, but, more importantly, it is possible to avoid future taxation (if, as expected, future regulations worsen the tax impact) while maintaining the power and effective control structures of the founding generation (a desirable aspect for parents and often essential for ensuring a gradual and effective handover). And this applies to all types of companies, from the smallest to the largest.
The Taxation of Crypto Assets and Past Regularization
What are the criminal implications of declaring/regulating crypto activities? The budget law doesn’t address it, but the issue exists and will need to be addressed and clarified in some way.
With the current state of affairs – setting aside the hypothesis of illicit origin of the capital used for investing in crypto assets and focusing only on the criminal issues related to possible tax offenses of false declaration – I don’t see any problems on the tax criminal front, as the regularization, fully comparable to a voluntary disclosure, falls within the grounds for non-punishment provided by Article 13 of Legislative Decree 74/2000 (though there might be some issues in calculating the evaded taxes for determining the threshold of punishment).
However, I do see problems on the front of potential money laundering and self-laundering offenses.
In this case, the grounds for non-punishment of the underlying offense do not prevent the configuration and punishment of the subsequent offense, given the extension of the survival clause to money laundering and self-laundering offenses, as established by the last paragraph of Article 648 of the Criminal Code, which states that the subsequent offense remains punishable even if the underlying offense is not.
The market for tax credits related to building incentives, already present in tax files, currently amounts to approximately $100 billion.
The circulation of these credits is regulated by Decree-Law No. 34 of 2020, converted, with modifications, by Law No. 77 of 2020. Recently, with Decree-Law No. 11 of February 16, 2023, the government has suspended the possibility of transferring the aforementioned tax credits accrued after the entry into force of the decree. For past credits already present in tax files, although allowed, the circulation is effectively blocked due to the reached capacity of acquiring banking entities.
This opens up the market for tax credits to new financial entities as well as direct user companies.
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