• Substitute tax on income produced abroad for those who transfer their tax residence to Italy
• The concept of tax residence in Italy
• Income affected by the option
• Request for interpello to be submitted to the Italian Revenue Agency
• Duration of the option
• Forms of facilitation in the processing of applications for entry visas and residence permits

Substitute tax on income produced abroad for those who transfer their tax residence to Italy

Article 1, paragraph 152, of Law no. 232 of 11/12/2016 (State budget forecast for the financial year 2017 and multi-year budget for the three-year period 2017-2019) added Article 24-bis     to Chapter I of Title I of the Consolidated Law on Income Tax (TUIR) , pursuant to Presidential Decree no. 917 of 22 December 1986, according to which those who transfer their tax residence to Italy can decide to apply a substitute tax for the Personal Income Tax (IRPEF) on income produced abroad . Choosing this regime entails the payment of a flat-rate tax of 200,000 euros (1) for each tax period in reference to which the option applies .

Pursuant to the sixth paragraph of Article 24-bis of the Consolidated Law on Income Tax (TUIR) , upon request of the person exercising the option for the application of the flat-rate tax of 200,000 euros on income produced abroad, the option may be extended throughout the option period, provided that they satisfy the above conditions, to one or more of the family members referred to in Article 433 of the Civil Code,

• the spouse;
• children, including adoptive children, and, in their absence, close descendants;
• the parents and, in their absence, the closest ascendants; the adoptive parents;
• sons-in-law and daughters-in-law;
• the father-in-law and the mother-in-law;
• full-bred or unilateral brothers and sisters, with precedence of full-breds over unilateral ones.

For each of the above-mentioned family members, the option to apply the flat-rate tax may be extended throughout the option period, regardless of the amount of income they produce abroad , to the extent of €25,000 for each tax period in which the aforementioned option is valid.

Paragraph 153 of art. 1 of Law no. 232 of 11/12/2016 states that those who transfer their tax residence to Italy who exercise the option for the application of the substitute tax on income produced abroad pursuant to  Article 24-bis of the Consolidated Law on Income Tax (TUIR)  , for the tax periods of validity of the option provided for therein:

• they are not required to complete the “RW Form” (declaration pursuant to Article 4 of Legislative Decree 28 June 1990, no. 167 , converted, with amendments, by Law 4 August 1990, no. 227)
• are exempt (See: point 5.2 of Circular no. 17/E of 23 May 2017)
  • from the Tax on the Value of Real Estate
    Located Abroad (IVIE) – (provided for by article 19, paragraph 13 , of Legislative Decree no. 201 of 6 December 2011, converted, with amendments, by Law no. 214 of 22 December 2011)
  • from the Tax on the Value of Foreign Financial Assets
    (IVAFE) – (provided for by article 19, paragraph 18 , of the legislative decree of 6 December 2011, n. 201, converted, with amendments, by law of 22 December 2011, n. 214)

 Paragraph 158 of art. 1 of Law no. 232 of 11/12/2016 establishes that for open successions and donations made during the tax periods in which the option is valid, the inheritance and donation tax is due only on the assets and rights existing in the State at the time of the succession or donation (See: point 5.3 of Circular no. 17/E of 23 May 2017) .

The provision set forth in paragraph 153 of art. 1 of Law no. 232 of 11/12/2016 also applies to family members for whom the option has been extended pursuant to the sixth paragraph of Article 24-bis of the Consolidated Law on Income Tax (TUIR)  .

The Provision of 8 March 2017  established the application methods for the exercise, modification or revocation of the option referred to in paragraph 1 of Article 24-bis of the Consolidated Law on Income Tax (TUIR) , and for the payment of the substitute tax referred to in paragraph 2 of the same Article 24-bis .

Part III of Circular no. 17/E of 23 May 2017 is dedicated to interpretative clarifications on the Optional Tax Regime for natural persons who transfer their tax residence to Italy pursuant to Article 24-bis of the Consolidated Law on Income Tax (TUIR) .

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The concept of tax residence in Italy

The transfer of tax residence to Italy must comply with the requirements set out in Article 2, paragraph 2 (Taxable persons) of the Consolidated Law on Income Tax (TUIR):

“2. For the purposes of income tax, persons are considered residents if for the majority of the tax period, including fractions of a day, they have their residence pursuant to the Civil Code or domicile in the territory of the State or are present there. For the purposes of applying this provision, domicile means the place where the person’s personal and family relationships primarily develop. Unless proven otherwise, persons registered for the majority of the tax period in the registers of the resident population are also presumed to be residents.”

Part I  of Circular no. 17/E of 23 May 2017 is dedicated to the general criteria for identifying residence.

In this regard, it should be highlighted that Art . 1 Residence of natural persons  of  Legislative Decree no. 209 of 27/12/2023 ,  in force since 29/12/2023, has replaced the second paragraph of art. 2  (Taxable persons) of the Consolidated Law on Income Tax (TUIR) .

(See: International tax reform – New rules for the residence of natural persons )

In this regard , Circular no. 20/E of 4 November 2024 was issued  Operating instructions for offices regarding the tax residence of natural persons and companies and entities following the changes made by Legislative Decree no. 209 of 27 December 2023

Point 2.4 of Circular no. 20/E of 4 November 2024 is specifically dedicated to the Preferential regimes for individuals who transfer their tax residence to Italy. The requirement of not having been resident in Italy in previous tax periods .

Pursuant to the first paragraph of Article 24-bis of the Consolidated Law on Income Tax (TUIR)  , individuals who transfer their tax residence to Italy can benefit from the flat-rate tax of 200,000 euros on income produced abroad provided that:

• the transfer of tax residence to Italy complies with the requirements set out in Article 2  (Taxable persons) of the Consolidated Law on Income Tax (TUIR) 
•  who have not been tax residents in Italy , pursuant to Article 2  (Taxable persons) of the Consolidated Law on Income Tax (TUIR) , for a period of at least nine tax periods during the ten preceding the start of the validity period of the option.

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Income affected by the option

Pursuant to the first paragraph of Article 24-bis of the Consolidated Law on Income Tax (TUIR) , natural persons who transfer their tax residence to Italy can benefit from the flat-rate tax of 200,000 euros , for each tax period in reference to which the option applies, on income produced abroad identified according to the criteria set out in Article 165, paragraph 2 of the TUIR (which refers to a criterion of reciprocity with respect to Article 23 of the TUIR which identifies income produced in Italy, the so-called “mirror reading” ).

The substitute tax does not apply to capital gains realised through the transfer for consideration of qualified shareholdings (pursuant to article 67, paragraph 1, letter c) of the TUIR ), realised in the first five tax periods of validity of the option, which remain subject to the ordinary tax regime.

It should be noted that the previous ordinary tax regime applicable to capital gains realised through the transfer for consideration of qualified shareholdings (paragraph 3 of article 68 of the TUIR repealed by the 2018 Budget Law (art. 1, paragraph 999) to which Article 24-bis refers) was repealed by the  2018 Budget Law which aligned the taxation on capital gains from qualified shareholdings to that of non-qualified shareholdings by also establishing the application of the fixed rate of 26% as a definitive tax for qualified shareholdings.

Point 2 (OBJECTIVE SCOPE OF APPLICATION) of PART III (OPTIONAL SUBSTITUTE TAX REGIME FOR NEW RESIDENTS) of Circular no. 17/E of 23 May 2017 focuses on the identification of income produced abroad that can be subjected to the flat-rate tax of 200 thousand euros .

As mentioned above, the option for the flat-rate tax of 200,000 euros concerns income produced abroad identified pursuant to Article 165, paragraph 2 of the TUIR which provides for a “ mirror reading ” according to which income is considered to be produced abroad on the basis of the “ reciprocal criteria ” set out in Article 23 of the TUIR  to identify income produced in Italy.

It should be kept in mind, in order to carefully evaluate the convenience of the option, that, according to the practice of the Italian Revenue Agency, the internal definition of “income produced abroad” is applicable only when there is no Convention against double taxation between Italy and the State of the source of the income , given that, in the presence of a Convention, it is the latter that prevails, overriding the “mirror reading” provided for by the legislation .

In this regard, point 2.1. (Income produced abroad and the “mirror” reading of article 23 of the TUIR) of Circular no. 9 of 05/03/2015 – Revenue Agency – Central Regulatory Directorate is clearly expressed:

“Pursuant to paragraph 2 of article 165 of the TUIR , “income is considered to be produced abroad on the basis of reciprocal criteria to those provided for by article 23 to identify income produced in the territory of the Italian State”.

The system therefore accepts the so-called “mirror” reading criterion, according to which income is considered to be produced abroad on the basis of the same connection criteria set out in Article 23 of the TUIR  to identify income produced in the territory of the State.

The internal definition of “income produced abroad” is applicable only in cases where there is no Convention against double taxation between Italy and the State of the source of the income.”

A list of the Conventions for the avoidance of double taxation signed by the Italian State can be found on the page “ Conventions for the avoidance of double taxation ” of the website of the “Department of Finance”.

In order to assess the convenience (or otherwise)  of the flat-rate tax of 200,000 euros on income produced abroad, it is
therefore essential to identify the criterion for determining the place where the income is considered to be produced.

• or (if signed) according to the criteria established by the Convention for the avoidance of double taxation
• or, in the absence of an agreement,  according to the reciprocal criteria to those provided for in Article 23 to identify those produced in the territory of the Italian State.

This approach can be found both in the Dossier and in the reading sheet of the 2017 Budget Law of the Senate and the Chamber of the Republic (Page 211) , according to which “In the absence of a Convention against double taxation, income is considered to be produced abroad on the basis of reciprocal criteria with respect to those provided for by the aforementioned article 23 of the TUIR, which identifies the income produced in the territory of the State in relation to the different typologies.”

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Request for interpello to be submitted to the Italian Revenue Agency

Pursuant to the third paragraph of Article 24-bis of the Consolidated Law on Income Tax (TUIR) , the above option must be exercised after obtaining a favorable response to a specific request for a ruling submitted to the Italian Revenue Agency ( Article 11, paragraph 1, letter b), of Law No. 212 of 27 July 2000 ) , within the deadline for filing the declaration relating to the tax period in which residence is transferred to Italy pursuant to paragraph 1 of Article 24-bis of the Consolidated Law on Income Tax (TUIR) and is effective from that tax period.
Individuals  who transfer their tax residence to Italy and who decide to exercise the option for a substitute tax on Personal Income Tax (IRPEF) on income produced abroad must indicate in the option the jurisdiction or jurisdictions in which they had their last tax residence before exercising the option.
The Italian Revenue Agency transmits such information, through the appropriate administrative cooperation tools, to the tax authorities of the jurisdictions indicated as the place of last tax residence before the exercise of the option.

In the request for clarification the taxpayer must indicate (point 1.4 of the Provision of 8 March 2017 ) :

• a) personal data and, if already assigned, tax code and, if already resident, the relevant address of residence in Italy;
• b) the status of non-resident in Italy for a period of at least nine tax periods during the ten preceding the start of validity of the option;
• c) the jurisdiction or jurisdictions in which he or she had his or her last tax residence prior to the exercise of the option;
• d) the foreign States or territories for which it intends to exercise the option not to avail itself of the application of the substitute tax pursuant to paragraph 5 of Article 24-bis of the Consolidated Law on Income Tax (TUIR) .

The request for clarification must be accompanied by the specific Check list  (point 1.5 of the Provision of 8 March 2017) to verify the existence of the elements necessary for access to the regime, possibly accompanied by the relevant supporting documentation ( Option for the substitute tax for new residents – Check list to be attached to the request for clarification provided for by art. 24-bis of the TUIR )

Instructions for completing the checklist attached to the request for clarification provided for by art. 24-bis of the TUIR

Pursuant to point 1.7 of the Provision of 8 March 2017, the request for a ruling is submitted by the taxpayer to the Central Assessment Directorate by hand delivery, by registered mail with acknowledgement of receipt or by electronic submission using the certified email address referred to in the Presidential Decree of 11 February 2005, no. 68. In the latter case, the request is sent to the
certified email address dc.acc.nuoviresidenti@pec.agenziaentrate.it.
For non-resident subjects without a domiciliary in the territory of the State, the request for a ruling can be sent to the ordinary email address dc.acc.upacc@agenziaentrate.it. The request must be signed with a handwritten signature, or, in cases where the document is sent via certified email, with a digital signature or with the methods referred to in art. 38, paragraph 3, of the Presidential Decree of 28 December 2000, n. 445 .

Although paragraph 3 of Article 24-bis of the Consolidated Law on Income Tax (TUIR)  provides that the option for the substitute tax “must be exercised after having obtained a favourable response to a specific request for a ruling submitted to the Revenue Agency” , the Revenue Agency goes beyond this obligation by relegating it to a simple “possibility”
(see: Provision of 8 March 2017 (point 1.3: “can submit a specific request for a ruling”) and Circular no. 17/E of 23 May 2017 (point 3: “Article 24-bis, paragraph 3, of the TUIR provides for the possibility for the taxpayer to submit a request for a ruling”) , depriving of content the burden of the Agency to transmit the information contained in the request and in the Check list  , through the appropriate administrative cooperation tools, to the tax authorities of the jurisdictions indicated as the place of last tax residence before the exercise of the validity of the option for the substitute tax.

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Duration of the option

The option is tacitly renewed from year to year, unless there is a case of cessation of the effects, revocation of the option or forfeiture of the regime (for example, for failure to pay or partial payment of the substitute tax within the deadline or for transfer of tax residence to another State or territory).

In any case, the effects of the option cease after fifteen years from the first tax period of validity of the option.

For each tax period in which the regime is effective, the substitute tax must be paid in a single solution, by the date set for the payment of the balance of income taxes, without the possibility of making use of the voluntary disclosure regime.

The taxpayers concerned, both the principals and those involved as family members, must independently pay the tax, using the “F24 Payments with identification elements” form (  Resolution no. 44/E of 11 June 2018, tax code “NRPP” called “IRPEF replacement tax – NEW RESIDENTS – art. 24-bis, paragraph 2, of the TUIR”.).

The option for the substitute tax can be revoked by both the principal taxpayer and the family member to whom it has been extended. The choice must be expressed in the income tax return relating to one of the tax periods following the one in which it was exercised or, in the absence of a reporting obligation for that tax period, by means of a specific communication to the Taxpayers’ Division of the Revenue Agency. This must be produced, within the deadline for filing the return, with the same methods provided for the request for an interpello. In the event of revocation by the principal taxpayer, the effects are also produced with respect to the family members to whom the option was extended, regardless of whether they independently exercise the right of revocation.

If the revocation is exercised after having already paid the substitute tax for the same tax period, the relative amount may be requested for reimbursement or used as a set-off via form F24 ( Resolution no. 14/E of 6 March 2023 – Tax code “NRRE” called “Revocation of option art. 24-bis of the TUIR – IRPEF substitute tax – NEW RESIDENTS”).

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Forms of facilitation in the processing of applications for entry visas and residence permits