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posted 1 year ago
The Supreme Court in Italy (“Corte di Cassazione” in Rome) rarely deals with Double taxation Agreements; however, last September, two important judgements were issued concerning the Italy-US Convention and which may influence the interpretation of many other Double taxation Conventions.
This is because the consistent interpretation of the phrase “by the request of the recipient”, which appears in the text of various international agreements (including in the text of the Italy-US Convention), confirms that when Italy intended to deny the tax credit – not only in cases where the element of income is subject to substitute tax, or withholding tax at source takes place at the request of the taxpayer, but also in cases where it is mandatory under Italian law – it expressly provided for it.
The Supreme Court accepted the taxpayer’s reasons by establishing the illegality of the internal legislation with respect to the principle of free movement of capital in the absence of any suitable cause to justify this disparity. First of all, there would be no danger for the tax controls by the Italian Tax Administration, since by virtue of Article 26 of the Italy-US Double Taxation Convention, there is a reciprocal obligation to exchange information between the administrative authorities. Furthermore, contrary to what was asserted by the judgement of the previous instances, the difference in tax regimes (ETT-type vs EET) does not give rise to a difference in treatment, since an EET-type tax scheme is also provided for by EU Member States to which the 11% withholding tax is applied under Italian law.
By G. Balbi
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