SUBJECT: Interpello - Article 11, Law of 27 July 2000, no 212 - Regime of
minimum taxpayers - Explanation of the cases
exclusion under Article 1, paragraph 99, letter d) of the Act
December 24, 2007, No 244
GUY QUESTION conducts employee and shareholder at 50%
with his wife in a partnership which has as its sole object the carrying out of activities under Article
farm. 2135 c.c. ed attività connesse, compresa la cessione di
energia fotovoltaica. Tale società opera nei limiti dell’art. 32 del decreto del
Presidente della Repubblica 22 dicembre 1986, n. 917, per cui i soci sono titolari
di reddito fondiario e non di reddito d’impresa.
L’istante è iscritto nel registro dei revisori contabili ed intende avviare
un’attività di consulenza gestionale ed amministrativa, per la quale chiede di
sapere se sia consentito avvalersi del regime dei contribuenti minimi disciplinato
dall’art. 1, commi da 96 a 117, della Legge 24 dicembre 2007, n. 244 (Legge
Finanziaria per il 2008). The doubt arises from the fact that Article. 1, paragraph 99, letter
d)
of the said law excludes from the scheme operators
activities of businesses or trades and professions in an individual who, together,
participating in partnerships or associations referred to in art. 5 of Presidential Decree No.
917 of 1986.
interpretative solutions proposed by the Taxpayer
The petitioner notes that, by circular dated January 28, 2008, No 7 / E, 2.2
the Inland Revenue has granted to farmers who carry
activity within the limits set by art. 32 of Presidential Decree No. 917 of 1986, although
subject to VAT at the special procedure laid down in Articles. 34 and 34 - a
decree of the President of the Republic of 26 October 1972, n. 633,
the possibility of using the system of minimum taxpayers with respect to other business activities, arts and professions
that may develop.
believes that this principle is applicable even if the agricultural income,
determined according to art. 32 of Presidential Decree No. 917 of 1986, resulting from your participation in a partnership
operator farming.
In both cases, the income produced is the same, differing only in the aspect of
arise from a collective rather than individual
farming.
Given the above, the applicant expects to apply the system of minimum
the management consulting and administrative activities that is going to take,
not act in the case exclusion from the scheme provided by
that article 1, paragraph 99 , d) of the 2008 budget.
OPINION OF THE AGENCY AND REVENUE
Paragraphs 96 to 117 of Article 1 of the Budget Law for 2008,
have introduced a simplified tax regime and facilitated (cd
"minimum taxpayers") for persons whose business activities, artistic or professional
is due, according to the requirements defined by law, to
concept of "minimum activity", has, however, the subject of income
product to a substitutive 20%.
Paragraph 99 of the same law governs the case
exclusion from the scheme, providing that taxpayers are not considered
minimum:
a) natural persons who make use of special procedures for value added tax
;
b) omitted;
c) omitted;
d) carry on the business business or trades and professions in the form of individual
simultaneously participating in partnerships or associations referred to in Article 5 of that
single version of the Decree of President of the Republic
December 22, 1986, No 917, or a limited liability company
referred to 'Article 116 of the consolidated text.
With reference to the exclusion of the letter referred to
)
, the writer explained that
farmers, although subject to VAT
the special regime provided for in Articles 34 and 34 -
bis of Presidential Decree 633 of 1972,
can use the system of "taxpayers minimum "in relation to another's business or any professional
exercised, provided that the agricultural activity is carried out in
limits of Article 32 of Presidential Decree No. 917 of 1986 and is therefore
production, the effects IRPEF, income and land marks (see
circular of January 28, 2008, 7 / E, paragraph 2.2).
not, in fact, it would create a situation where the same taxpayer would
owner of business income and / or work independently
, partly taxed in the ordinary way and partly under the regime
substitute tax provided for taxpayers minimum.
This indeed is the situation that the legislature intended to remove
providing further grounds for exclusion from the regime of "minimum taxpayers"
referred to in subparagraph d) of paragraph 99
quoted (see, on this point, the
resolution of 09 June 2009, n. 146 / E).
In this regard, it is noted that although the rule is specifically referred
participation in partnerships or associations referred to in Article 5 of Presidential Decree No.
917 of 1986, or a limited liability company referred to in Article
Presidential Decree No. 116 of 917 of 1986, the possibility of subjecting the same income
two different taxation regimes
occurs only in cases where the income is a holding company income or working independently
.
Instead, when the income attributed to shareholders do not fall within these categories, the rationale
been met, as the investment company does not give rise to a different treatment
income of the same nature that, through the provision in
art. 1, paragraph 99, letter d
)
, it was intended to prevent.
Therefore, under such conditions, it is considered
that participation in one of the companies mentioned in the said paragraph 99, letter d
)
,
not preclude access to the system of "minimum taxpayers" with reference to
professional activity in an individual, subject, com ' Obviously, the
compared to all other legal requirements.
However, the case must be considered that the simple company of which the applicant is a member
50%, also carries out activities related to agriculture, including the sale of
PV.
In this regard, Article 1, paragraph 423, the Law of 23 December 2005 No
266 (Budget Law for 2006), as amended, provides that
the production and sale of electricity and heat from renewable sources and solar
agroforestry made by farmers are
activities under Article 2135 of the Civil Code and shall be deemed
production of agricultural income.
However, it is clear that, for tax purposes so that these activities "related"
be subject to income taxation on a register must occur
the requirements of the prevalence or the connection, depending on whether the production
energy derived from renewable sources, respectively, agroforestry or
from PV sources. About this issue is as stated in its circular dated 6 July 2009
No 32 / E.
Consequently, only if those conditions being met, the simple
participation in society in the instant matter, for which the
income generated from farming and related activities
be classified as agricultural income under 'Art. 32 of Presidential Decree No. 917 of 1986, there will be
impede the implementation of the system of minimum taxpayers
further work activities autonomo che si intende esercitare.
Fonte: Agenzia Entrate
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