On April 24th, 2017, the Italian Government enacted the Law Decree n. 50/2017 that introduces a new tax regime applicable to “carried interest”, i.e. the share to the profit of an investment earned by managers of undertaking for collective investments and more generally by employees/directors of companies.
The new rules provide that the income realized by managers/employees in relation to carried interest embedded into units of undertaking for collective investments (“UCIs”) or shares/financial instruments of companies qualifies as financial income (in principle subject to 26% substitute tax).
The new regime applies to carried interests deriving from the participation to companies, entities or UCIs resident or established in the Italian territory or in States that allow an adequate exchange of information.
Conditions of applicability
In particular, the carried interest regime applies to the income deriving from the direct or indirect participation in companies and UCIs, earned by employees and directors of such companies/UCIs (or of any other entity controlling such companies or managing the UCIs) and relating to units, shares and other financial instruments embedding economic returns higher than the ordinary ones (the “Preferred Financial Instruments“), provided that the following conditions are met:
- the actual commitment in the UCI of all the employees/directors entitled to the carry interest is equal, at least, to (i) 1% of the overall investment carried out by the UCI or (ii) 1% of the net equity value of companies or other entities issuing the Preferred Financial Instruments. The 1% minimum commitment is determined by computing also the amount invested in ordinary units or shares (i.e. financial instruments having the same economic rights of all the other investors/shareholders), as well as the amount, if any, taxed as employment income in the hands of the employees/directors upon subscription of the shares or quotas (or that would have been taxed in Italy if the employees/managers had been Italian tax residents);
- the carried interest, i.e. the higher return embedded in the Preferred Financial Instruments, is paid to employees/directors only after the repayment of the invested capital contributed by all the investors/shareholders plus the agreed-upon minimum yield of return (“hurdle rate”) provided for by the by-laws or the internal rules of the UCI. In case of change of control, the carried interest accrues upon the condition that the other investors/shareholders realize a consideration for the sale at least equal to the invested capital plus the hurdle rate;
- the Preferred Financial Instruments are held by the employees/directors (or, in case of death, by their heirs) for a period of at least 5 years, or until the date of change of control (that should also include the liquidation event) or substitution of the management company if such events occur prior than the five-years period.
Entry into force
The new provisions apply to the income from the Preferred Financial Instruments received from the date of entry into force of the Law Decree. The Law Decree has entered into force on April 24 2017 and it must be converted into law within 60 days (i.e. within June 23rd, 2017), otherwise it will decay. At the moment, the Decree is under examination at the Parliament, which can amend or abolish, during the conversion procedure, the current version of the new provisions.