Avvocato Carlo Bottino WWW.PMBLEX.IT - Bottino law firm

It is not a good moment for Italian economy, but expecially in Milan in this kind of market some good opportunities could arise for the new investors. Milan has been chosen for the next Intenational www.milanoexpo-2015.com/2015 and every year hosts many important exhibitions at the new Fiera di Milano.

 

If your company wish to do business in Italy start as follow:

 

Find a good agent, with a great background in your market. It is possible find someone through the Chamber of commerce, or advertising on the economy newspaper.

 

Have you found the man?

You need an Italian Limited company S.r.l. (Società a Responsabilità Limitata)

Unfortunately It involves some costs higher than in other countries as following:

Minimun capital to be invested (compulsory for the Italian law)      € 10.000,00

Notary’s fee (the public Notary in Italy is the only professional who can draft the contract for a new company)                                   € 2.000,00

Chamber of commerce enrolling Tax (yearly)                                             400,00

Other professionals (lawyer for legal issues and accountant

for tax and drafting the yearly final budget)                                                     € 5/6000,00

Lease of the office etc …(It depends of the size and the area where located) € 15.000,00

The S.r.l. is the company because it does not involve any responsibility for the shares’ owners in the event of insolvency or bankruptcy.

The new company could be lead by your Italian representative (your agent who could be nominated administrator), but with the strictly control of your Foreign Head company which will hold the majority of the shares .

All the businesses should be promoted by your agent, but contracted and closed directly by the holding company. This the only way to preserve your business abroad reducing the taxes in Italy and mantain the total control of the Italian business. The agent could earn on percentage of your gains.

Following some useful website to do business in Italy.

www.en.sviluppoitalia.it/

http://www.investinitaly.com/default.jsp

http://waieng.mi.camcom.it/show.jsp?lang=en

http://www.startinitaly.it/

http://www.expatsinitaly.com/bookexcerpt/startup.html

Interested to start with your Italian business for the next Expo 2015, It is not too early. Contact us by e-mail info@studiolegalebottino.it

 

WHO CAN MAKE AN ITALIAN WILL

 

A person who is

• at least 18 years old

• the legal owner of the remaining assets

• of sound mind (capace di intendere e di volere). In the event of a dispute over the mental capacity at the time of drafting the will, a court will decide.

 

WHO SHOULD MAKE AN ITALIAN WILL……

 

Italy recognises as valid an Intenational will as valid, but it is recommended that a foreigner makes a will in Italy if he/she

 

• is living permantly in Italy, having the residence there at the time of his death

• is a Foreigner who owns immovable property (house, flat, land) in Italy.

 

The main reason for making an Italian will is to simplify matters at the time of death.

 

 

 

………AND WHY?

 

• Heirs of an only English will may have substantial difficulty in dealing with the transfer of any Italian assets. This is because the will must be authenticated before an Italian Notary Public.

• The Notary, or any other Italian Professional may have substantial difficulty in examining the English will with regard to the Italian assets, in resolving the conflicts between the English and Italian law, as well as advising heirs and/or preparing suitable documentation to transfer the assets.

• the costs of translation of all English documents in Italy are going to be very higher, more than the cost of making an Italian will

• you must save money in respect of Inheritance Tax, because the Italian legislation is more generous than the English one (see INHERITANCE TAX CHAPTER). This in practice means that the small / medium Estates are not subject to Inheritance tax in Italy.

 

 

 

DIFFERENT WAYS OF MAKING A WILL

 

Under Italian law there are three different ways of making a valid Will:

 

1. Handwritten Will (Holographic will - Testamento Olografo)

 

This document:

• is personally handwritten by the person making the Will (Testator),

• is dated (determining the most recent will in the event of these being several

• is signed.

• can be in any language, written on any paper / other medium.

 

Although it is a simple document, it is advisable that it should be checked by a lawyer to ensure that all the formal and substantive  legal requirements have been satisfied.
 

2. Formal Will (Testamento Pubblico)

 

This document

• is drafted by an Italian notary upon the instructions of the Testator,

• is read out by the Notary to ensure that it complies with the wishes of the Testator

• is signed by the Testator in the presence of witnesses.

• is lodged with the Italian notary.

• is a fairly formal document.

• will not be lost / disregarded,

• involves a cost (notarial fees),

• is disclosed to a third party, because it is public will, not secret.

 

3) Secret Will (Testamento Segreto)

 

• This is a Will drafted / written by the Testator and placed in a sealed envelope which is then delivered to an Italian Notary. The notarial fees are reduced, the contents of the Will shall remain secret until after the death of the Testator when, the sealed envelope will be open.

WHAT IS THE ACTUAL PROCESS OF MAKING A WILL?

 

In the case of

 

a) Handwritten Will (testamento olografo)

 

There is no need of witnesses, there is no attestation clause. It can be a very simple letter or document draft directly by the testator.

 

b) Formal will (testamento pubblico)

It is necessary to have an appointment by the notary and explain the will of making a “testamento pubblico”, giving the relating instructions. Not all Italian Notaries speaks English, better to find out one English speaking. Generally the witnesses requested are elected by the notary between his clerks.

The costs

 

c) Secret will (testamento segreto) see above

 

WHO PREPARES THE WILL

 

It is better to have legal advise by a lawyer dealing with the two jurisdictions. Wills and probate matters involve taxation issues , then ask to an Italian accountant should be advisable in preparation of the will (generally an Italian lawyer can introduced you to him and works together).

 

If you have chosen to make a Testamento pubblico, the public Notary can draft the wills according your instructions; it is not simple to find a Notary dealing with the two jurisdiction, as the Testamento Pubblico involves only the Italian legislation.

 

HOW LONG DOES IT TAKE

 

It is not a long procedure, It is important to prepare all documents accurately. Contact an Italian professional (lawyer or Notaio) and avoid changing your mind, if possible (actually you can change your will up to the time of death, but if you are in good health why make the notary or the lawyer crazy changing your intentions a few minutes after drafting the will)

 

In case of emergency you can write your will directly or contact a Notary who can receive your last will.

 

WHAT HAPPENS AFTER THE DEATH OF THE WILL-MAKER?

 

Firstly, you must ascertain what kind of will the testator made.

 

You must collect all the documents affecting the testator’s properties and contact an italian professional (Lawyer, Notaio, Accountant or Geometra) to make the “Dichiarazione di successione”.

The “dichiarazione di successione” must be made by the heirs within 6 months from the date of death. They must complete a form in which all the assets will be included, apply to Ufficio delle Entrate (Tax office) of the town where the deceased was resident. If the deceased was not resident in Italy, the declaration of succession must be presented to the relevant Tax Offices in Rome.

Finally, the Professional will be able to complete the procedure by registering the new owners at Ufficio del Catasto. A registration tax must be paid, calculated on the value of the assets.

 

ITALIAN INHERITANCE TAX

The heirs will be requested to pay the Inheritance Tax when they present the above mentioned declaration to the competent office.

 

The Italian inheritance tax was abolished in 2001 but it has been recently re-introduced by the government.

 

The new Italian Inheritance Tax is now levied at three different flat rates, on the whole or part estate of the Deceased with reference to the beneficiaries entitled, as follows:

- 4% where the Estate or part of the Estate devolves to the Deceased’s spouse or children, with a nihil rate band up to € 1,000,000 each (which at current exchange rates is equivalent to an exempt slice of £ 657,800 for the spouse and each of the children) (the so called “Franchigia”).

- 6% where the Estate or part of the Estate devolves to brothers or sisters (subject to an exempt amount of Euro 100,000 each) and to other relatives of the Deceased up to the 4th degree (without any “exempt amount”),

 

-8% where the Estate or part of the Estate devolves to unrelated parties. Where the Estate or part of the Estate devolves to one or more disabled children, the exempt amount is increased to Euro 1,500,000 (£ 986,800 at the current rate of exchange).

- where the Estate includes a business or a substantial shareholding in a company, whatever their amount, they are not taxed on death if they pass to the children of the Deceased, and the said children undertake to continue to carry on the business or control the company for at least 5 years.

 

 

IS THE PROCESS DIFFERENT FOR FOREIGN RESIDENT

The English rules relating to succession may vary according to whether the estate consists of movables or immovables and whether the deceased has left a will or died intestate.

The Italian legal system has adopted the principle of unity of succession; as consequence, the legislation of the deceased’ s country apply.

 

Contrary to the Italian legal system, the English law has adopted the so called principle of “scission” with the result that the succession of movables is governed by the law of the deceased’s domicile, while the succession of immovables is governed by the law of the situs.

For example, if you bought a property in Italy in your name and you still own it at the time of your death, under the English rules its succession should be regulated by the Italian law of succession. The Italian legal system accepts this “referral” by the English law and therefore the succession of this asset will be regulated by the Italian law of succession.

 

 

The Italian legal system, based upon the Civil Law, is characterised by a very high number of laws and a significant variety of grounds for appeal.

It is important to stress that legal proceedings, both civil and criminal, generally last many years.

The necessary legal proceedings are time consuming and will therefore have a direct effect on the process of the debt collection.

Debt collection in Italy requires a title which enables the creditor to commence execution of proceedings. Such titles may be, inter alia, a sentence, a cheque or a bill (of Exchange).

In order to allow the creditor to collect his credit within a relatively short period of time, the Italian Legislator has fixed a short proceeding - which usually lasts a few months – and is followed by a payment injunction issued by the Court which orders the debt to be paid, in addition to interest as well as part of the legal expenses.

In order to obtain the Court’s injunction (Decreto Ingiuntivo), the creditor should provide the Judge with written evidence regarding the debt’s existence: the creditor should, in other words, prove that the goods or the service have been regularly supplied/rendered to the debtor.

When the creditor is a professional, an entrepreneur or a company, the evidence required may also be provided in the form of a copy of the invoices, especially when the debt is related to services rendered.

Starting from the day in which the payment injunction has been formally served to him, the debtor may oppose it within a period of 40 days.

Where no such opposition has been made, the creditor may commence proceedings for the execution of the injunction.

Alternatively should, for any reason, the debtor decide to appeal, a “regular trial” takes place. The main issues discussed in such a trial are the legitimacy of the order (mainly formal aspects), the existence of the debt and whether it is collectable.

It is worthwhile to point out that in order to discourage debtors from filing groundless appeals, having as a unique scope the postponement of payment, the Italian law provides a remedy which seems to be quite efficient: in case the appeal is not based on relevant circumstances proved in writing which have occurred prior to the payment injunction (for example, a written complaint regarding the quality of goods/services), the Court may authorise the creditor to collect his credit without having to attend the end of the trial.

Other titles which enable a creditor to initiate execution are cheques and bills (assegno/cambiale).    

In case of their dishonour, the creditor may summon the debtor to pay within 10 days while advising him/her that unless they are paid, execution proceedings shall commence.

The aforesaid proceeding is quite simple, rapid and does not require the Court’s intervention thus leaving the debtor a narrow range of possibilities on which to appeal.

Tax benefits, such as in the case of a persons ‘first residential property’.

In order to simplify and encourage the purchase of a person’s first residential property, the Italian law decreases the taxes liable for those who make such a purchase. This is done in a number of ways. Specifically, at the time of purchase, the purchaser pays 3% (registry tax) if they buy from a private party, or 4% (VAT) if they buy from a business or company (with certain exceptions), plus mortgage tax and cadastral duties for a fixed amount (currently equal to a total of €336.00). Foreigners are also allowed to take advantage of the ‘first residential property’ benefits if they meet the same requirements as those for Italian citizens.Foreigners who are legally resident and who are registered in the unemployment office, or who are employed or self-employed, have the right to benefit, under conditions equal to those of Italian citizens, from council residential property and concessional credit loans for construction work, restoration work, purchase and rental if it is their ‘first residential property’.
Other tax relief related to the purchase of the ‘first residential property’ regards rebate (up to a certain amount) on income tax owing on the interest paid on mortgages raised for the purchase of a person’s first residential property.Finally, revenue produced by a person’s ‘first residential property’ is not subject to income tax.

COSTS EXAMPLE  

We’ve put together an example of the total cost of buying a £350,000 home in Italy, so you’ll get a better idea of how much you can afford. 

The typical cost of buying a £350,000 home with a 70% mortgage of £245,000
Estate Agent’s fees at 2.5%	£8,250
Plus, VAT at 20%	£3,500
Notaio’s fees	£3,500
Lawyer’s fee	£5,000
Mortgage registration fee at 2%	£4,900
Mortgage arrangement fee at 1%	£2,450
Total fees	£42,300

These figures should give you an idea how much you need to find on top of the purchase price. They vary according to the type of property you’re buying and whether agent’s fees are split or already included.

For calculating your costs and getting legal advice on purchase procedure please contact us

OFFICIAL ITALIAN TAXATION GUIDE

If you want a complete Italian taxation guide see  http://www.agenziaentrate.it/ilwwcm/…da_inglese.pdf

It is an useful document from the official web-site of Agenzia delle Entrate (the correspondent office of Inland Revenue Office) which provides an exaustive guide for foreigners in Italy.

By Avvocato Carlo Bottino 

Definition

The contract of mooring (contratto di ormeggio) is an italian atypical contract; the contract rules can space from the simple using the port structures for the landing, to the disbursement of launchings other services (as for instance the service of custody of the boat, the right to also have available the aqueous space in absence of the boat, the right to use bollards or rings of mooring)

This article concludes the survey on the main taxation on navigation giving a glance at the legal and tax aspects related to harbours and moorings.
 

Harbour

As first, it must be made clear that areas where harbours are built is part of the state property so that they cannot be transferred in the property of private subjects but can be only subject of a state concession and for a limited time.

By the concession private subjects obtain the right to use the state property area for state purposes and from that the following two legal rights arise on the goods subject of the concession:

A right of obligation, which is alike a lease contract. In this case the relationship between the state maritime property office and the concessionaire is subject to registration tax at 2% rate.A right of common, which is temporary as its length is limited to the duration of the concession.In general, construction or reconstruction of a tourist harbour implies a right of common unless different provisions are set forth in the concession deed.The concession affects the relationship between the concessionaire and the owner of a pleasure boat as only rights included in the concession can be transferred (e.g. the length of a contract for a mooring cannot exceed the duration of the concession).

Moorings

Moorings can be rented or can be used by virtue of a shareholding on the concessionaire company that manages the tourist harbour.

In case of rent and should the agreement intervene between the harbour manager in his business activity and the owner of a pleasure boat on a tax standpoint VAT is applicable at 20% rate whilst should the harbour manager not carry any business activity only the registration tax at 2% rate applies.

The shareholding is comparable to share time-sharing on a legal point of view. In fact, its main feature is the right of each shareholder to use goods in the property of the harbour company for a limited time.

Specific tax rules are stated in case of shareholding as the transfer of the right to use the mooring is possible only by the transfer of property of the relating shares. Accordingly, as to the direct taxation the transfer of shares make arise an appreciation (therefore an income), which is the result of the purchase cost and the consideration for the transfer.

No VAT applies to the transfer of the shares, as it is VAT exempted but tax on Stock Exchange contracts is due in case of transfer of the stock certificate.
Companies that manage tourist harbours are deemed as dummy companies for VAT purposes. Particularly the ownership and management of sporting and leisure clubs, including those assigned to mooring, to shelter and to the service of pleasure boats, is not deemed business activity if the participation to the mentioned activities implies a free or for a consideration lower than the standard value enjoyment of the goods and the aforementioned facilities for the shareholder himself or for his family. Accordingly, companies that manage tourist harbours cannot deduct the VAT paid to suppliers for not business activities.

Services rendered to the shareholders, thus also the use of the mooring, are not VAT taxable transactions if included in the shareholders’ equity and if the consideration is lower than the standard value.

As a consequence harbour services are VAT taxable only if they are rendered to thirds or if rendered to shareholders the consideration for these services is lower than the standard value.

If you need a legal advice for leasing a mooring and calculation of any tax please contact us

By Avvocato Carlo Bottino 

INTRODUCTION

The Italian legal system is very different from the English. Conveyancing is strictly governed by Italian Law and can be performed only by a public notary (Notaio), who is a qualified professional and public officer. Only in front of Notaio it is possible to complete the purchase of any real estate.

THE PRELIMINARY CONTRACT (Contratto preliminare or compromesso)

If you are still happy with the property then the next step is to go ahead with the preliminary contract (compromesso). The compromesso is a significant commitment and involves the payment of a deposit to the seller as an act of good will and undertaking. The purpose of the compromesso is to clarify all the conditions of the sale, includeing the purchase price and term of payment.

The compromesso can be drawn with the agreement of both parties. It is a golden rule to get a legal advice by an Italian lawyer before signing it. It is very important the buyer not to sign the compomesso unless He is perfectly happy and aware with everything written in the contract. Remember the buyer is in a position to impose conditions or restrictions on the vendor at this stage (e.g. see an example of compromesso conditioned to get planning permission.

For helping you to draft your compromesso contact us

CONSEQUENCES OF SIGNED COMPROMESSO

The signing of the compromesso which involves both the vendor and the buyer or their power of attorneys must take place in the presence of the notaio. At the time of signing, the buyer must pay a deposit of between 10 and 30 % of the sale price. Should the buyer not to go through with the purchase after signing compromesso, he will lose the deposit paid and may be sued by the vendor. If, however, the deal does not proceed because of the vendor, the buyer has the right to demand up to twice the amount of the deposit paid in compensation. In this case the buyer may also claim damages and have the sale compulsorily completed by a Court order (art. 2932 Italian civil code).

You need to claim damages (I hope not) contact us

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