Italian tax treatment of real estate securitisation transactions

With ruling no. 132 issued on 2 March 2021, the Italian tax authorities have provided important guidelines as to the tax treatment of certain aspects related to securitisation transactions of proceeds deriving from rights over movable registered assets and real estate properties carried out pursuant to article 7, paragraph 1, let. b-bis) of law no. 130 of 30 April 1999 (Law 130) by Italian special purpose vehicles incorporated pursuant to article 7.2 of the same law (so called 7.2 SPVs).

The new guidances

According with the newly issued official guidances, the Italian tax authorities have first of all clarified that the 7.2 SPV is not subject to any Italian corporate income tax (IRES) and to any regional tax on productive activities (IRAP) to the extent the vehicle is required to apply all amounts from time to time available to it – and deriving from the management of the assets of the securitisation transaction – solely in order to fulfil its obligations towards the holder of the notes and any other SPV’s creditor. On the contrary, if at the end of the securitisation, once the obligations vis-à-vis all the creditors of the segregated assets have been discharged, the residual economic result (if any) deriving from the management of the assets of the securitisation becomes attributable and pertains (if so agreed) to the 7.2 SPV, such profit shall be included in the taxable basis of the 7.2 SPV for IRES and IRAP purposes.

The reasoning of the Italian tax authorities seems to extend the same tax treatment also to the so called “reoco SPVs” incorporated pursuant to article 7.1, paragraph 4, of Law 130. This interpretation has never been officially endorsed by the Italian tax administration, even after the enactment by the Italian legislator of the amendments to the Law 130 by means of legislative decree no. 54 of 30 April 2019 (converted with amendments by law no. 58 of 28 June 2019).

Ruling no. 132 of 2 March 2021 has also confirmed:

1. the applicability to the notes issued by 7.2 SPVs of the tax regime provided for by legislative decree no. 239 of 1 April 1996. Specifically, decree no. 239 lays down a favourable tax regime for certain types of securities which, under specific conditions, exempts from any withholding or deduction in Italy payments of interest, premiums and other proceeds relating to such instruments which are held by certain categories of foreign investors;
2. the applicability to the transactions carried out by the 7.2 SPVs of the ordinary Italian VAT regime applicable to any other commercial entity; and
3. that the relief measures for indirect tax purposes (dealing with registration, cadastral and mortgage taxes) relating to acquisitions of real estate properties by reoco SPVs are not applicable to the 7.2 SPVs.