Therefore, the relevance of these criteria disregards any alteration, by the taxpaying company, of the objective reality. The criteria in question are not aimed solely at identifying elusive phenomena usually referred to as “esterovestizione”, characterised in general by the artificial and apparent distraction of the taxpayer from the national territory, in order to attract him into the more favourable taxation area of another State.
In such cases, the territorial connection criteria provided by the Article 73 of the TUIR are fundamental in order to verify what the company’s actual residence is, despite the manipulation of reality operated by the taxpayer.
Nevertheless, the same criteria perform their natural function in any case in which – due to objective transnational elements emerging in the concrete case and regardless of any hypothetical elusive action – it is necessary to verify the residence in Italy for tax purposes.
Consequently, any dispute based on the Article 73, paragraph 3, of the TUIR should be independent of the presence of any tax advantage that the company might have derived from its location in a foreign State and of the fictitious or abusive nature of that establishment.
It should be noted, however, that some recent case law pronouncements point in the opposite direction. In fact, the Italian Supreme Court, in orders no. 4463 of 11 February 2022, no. 7454 of 8 March 2022 and no. 8297 of 15 March 2022, considers that the phenomenon of the “esterovestizione” based on the Article 73, paragraph 3, of TUIR would apply only if the abusive conduct of the taxpayer is proven.
According to this jurisprudential interpretation (opposite to the one of the orders nos. 11709 and 11710 mentioned above), such disputes should be based on:
- the fictitious location abroad for tax purposes of a company that should be, instead, considered resident in Italy; and
- the presence an unfair tax advantage resulting from this location.
[1] The Art. 73, paragraph 3, in fact, provides that companies having their legal or administrative headquarters or their principal business activity within the Italian territory are considered to be resident in Italy for tax purposes.
