VAT refunds for an Italian permanent establishment clarified

International Tax Review is part of Legal Benchmarking Limited, 1-2 Paris Garden, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

VAT refunds for an Italian permanent establishment clarified

Sponsored by

sponsored-firms-hager.png
In order to receive the VAT refund, there are some conditions to be respected.

Gian Luca Nieddu and Barbara Scampuddu of Hager & Partners explain the latest clarifications following the recent change in law on VAT refund requests.

The Central Revenue issued a ruling on February 10 2020 which provided clarifications regarding the requirements for a VAT refund request from an Italian permanent establishment with a holding company not resident in Italy. 

For the Central Revenue, based on Article 38-bis, paragraph 3 of Presidential Decree No. 633 of October 26 1972 (VAT Decree), the main condition required for the certification of the VAT credit to have been verified by the foreign parent company and not by the permanent establishment.

In order to receive the VAT refund, there are some conditions to be respected, even in the specific case above in regard to Italian permanent establishment.

Based on Article 38-bis, it is necessary to have capital stability for the refund of an amount exceeding €30,000. Moreover, it is requested that the net capital of the refund applicant has not decreased by more than 40% when compared with the accounting results of the last tax period. 

In the specific case presented in the tax ruling application, the unclear aspect of the law submitted to the Revenue arises from the fact that the applicant, being a permanent establishment, does not prepare an official financial statement for the year. Therefore, there is no net equity, with respect to the requirements provided by Article 38 bis.



The Central Revenue provides clarifications recalling the principle ratified by the EU Court of Justice (sentence of March 23 2006, case C-210/04): the branch of a non-resident company is not autonomous and therefore no legal relationship can be deemed to exist between company and branch. Accordingly, they have to be considered as one unique person for VAT purposes (Article 4, No. 1 of the VI Directive).



The consequence will be that the condition of capital solidity referred to in Article 38-bis must be verified by the foreign parent company and not by the permanent establishment.



In addition, it will be certified by the Italian permanent establishment through a substitute declaration made in the manner described in the circular of the Central Revenue No. 35/2015, paragraph 9, with respect to the hypothesis of a non-resident subject with a tax representative in Italy.



Moreover, the holding company cannot act as guarantor for a permanent establishment for VAT refund. According to the principle that parent company and permanent establishment are one single (legal) entity, the simplification envisaged for the groups implies the assets of a third are affiliated.



Therefore, for the VAT refund for Italian permanent establishment, the guarantee must be provided in the other forms provided for by Article 38-bis (i.e., by the security of state bonds or bonds guaranteed by the State, a surety, a policy issued by an insurance company, etc).




Gian Luca Nieddu

T: +39 02 7780711 

E: gianluca.nieddu@hager-partners.it



Barbara Scampuddu

E: barbara.scampuddu@hager-partners.it 



more across site & shared bottom lb ros

More from across our site

The Brazilian law firm partner warns against going independent too early, considers the weight of political pressure, and tells ITR what makes tax cool
The lessons from Ireland are clear: selective, targeted, and credible fiscal incentives can unlock supply and investment
The ITR in-house award winner delves into his dramatic novelisation of tax transformation, and declares that 'tax doesn’t need AI right now'
Recent news of job cuts at EY is symptomatic of how the PwC controversy has tarnished the reputation of the entire ‘big four’
Experts reportedly discussed extending the safe harbour to 2027 to give countries more time to legislate; in other news, Baker McKenzie and Greenberg Traurig made senior tax hires
Awards
Submit your nominations to this year's WIBL Americas Awards by January 23
Recent changes in UK tax rules and cross-border requirements are generating high demand for specialist advice, according to MHA
Hany Elnaggar examines how Gulf Cooperation Council countries are internalising transfer pricing norms within evolving fiscal systems shaped by both Islamic and international influences
Where a TP study of comparables produces an arm’s-length range, and the taxpayer’s filed position is outside that range, HMRC will adjust to the median by default
EY, KPMG, Deloitte, and PwC have all seen a decrease in public sector contracts since the scandal – it is understood
Gift this article