Prepared by Energy Team
The Law No. 179/2022 (hereinafter the “Budget Law”), effective starting from 1 January 2023, introduced a temporary solidarity contribution for the FY 2023 due by the enterprises with activities in the energy and oil&gas sector (hereinafter the “New Contribution”). The New Contribution has been considered by the Italian Government “equivalent” to the solidarity contribution provided by the EU Regulation No. 2022/1854 published on 6 October 2022.
The Budget Law has also amended the extraordinary contribution introduced in March 2022 for the enterprises operating in the energy and oil&gas sector (hereinafter the “Previous Contribution”).
Thus, following the new law measures introduced by the Budget Law, the enterprises operating in the energy and oil&gas sector (including either Italian companies and Italian permanent establishments of foreign companies) are required:
- to determine the amount of the New Contribution to be paid, within 30 June 2023 for taxpayers having a calendar year tax period;
- to assess the impact of the amendments to the Previous Contribution within 31 March 2023.
The New Contribution introduced for FY 2023
The subjective scope
The subjective scope of the New Contribution includes:
- enterprises carrying out in Italy, for the subsequent sale of goods, the activity of electricity power production, enterprises engaged in the methane gas production or natural gas extraction;
- resellers of electricity power, methane gas and natural gas;
- enterprises engaged in the production, distribution and trade of petroleum products;
- enterprises which permanently import electricity power, natural gas or methane gas, petroleum products or which introduce in Italy such goods from other EU states.
Enterprises which operate platforms for the exchange of electricity, gas, environmental certificates and fuel are excluded from the scope of the New Contribution. Furthermore, the New Contribution is due as long as at least the 75 % the revenues, realized in the fiscal year (“FY”) preceding the one in progress on 1 January 2023, derives from the activities above mentioned.
Computation of the New Contribution
The New Contribution taxable basis is equal to the FY22 taxable income which exceeds a 10% increase of the average taxable incomes of FYs 18-21. If the average is negative, the average taxable income is deemed equal to zero. In order to determine the New Contribution due, the relevant taxable incomes are those relevant for Italian corporate income tax purposes (i.e. IRES).
The New Contribution rate is equal to 50%, which is greater than the one provided by the EU Regulation No. 2022/1854 equal to 33%. However, it is provided that the amount of the New Contribution may not exceed a cap equal to 25% of the net equity of the company at the end of the FY preceding the one in course on 1 January 2022 (i.e. generally the net equity as at 31 December 2021).
The Budget Law expressly provides that the New Contribution cannot be deducted for Corporate income tax (IRES) and business regional tax (IRAP) purposes. For the purposes of audits, penalties, collection and litigation, the same provisions applicable to Italian corporate income tax (i.e. IRES) will apply insofar as they are compatible.
The New and the Previous Contributions are likely to impact the profits generated, at least partially, in the same FY, since both Contributions assume, for the determination of the taxable base, a period covering at least a portion of the FY 2022.
The amendments to the Previous Contribution due for 2022
The Budget Law has also amended Article 37 of Law-Decree No. 21/2022, by introducing the following changes:
- the Previous Contribution is due if at least 75% of the turnover of fiscal year 2021 derives from the activities listed by the art. 37 of Decree-Law n. 21/2022;
- sale and purchase of quotas, bonds or other securities not representative of goods and shares occurred between taxpayers subject to the Contribution are excluded from the taxable base;
- sales not subject to VAT due to a the lack of the territorial requirement are excluded from the taxable base to the extent that they refer to purchases territorially not relevant for VAT purposes.
The amendments commented above may imply a higher or lower amount due by the taxpayer compared to the Contribution already paid in the course of 2022. If a greater amount would result ultimately due, the payment of the exceeding amount shall be carried out within 31 March 2023. If the amendments to the Budget Law would result in an amount of the Contribution actually due lower than the contribution paid in 2022 on the basis of the prior law provision, the surplus paid can be used by the taxpayer to offset other tax payables starting from 31 March 2023.
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PwC TLS Avvocati e Commercialisti
PwC TLS Avvocati e Commercialisti