Edited by Vitalba Passarelli, Giovanni Marra and Flavia Sasso D’Elia
With the Directorial Decree of 4 July 2024, MIMIT approved the “Guidelines” for Certification pursuant to art. 23, paragraphs 2 to 5 of Legislative Decree no. 73/2022 and art. 3, paragraph 5 of Prime Ministerial Decree 15 September 2023, relating to the criteria to be followed for the qualification and validation of investments made (or to be made) for the purposes of their classification within the scope of Research and Development, Technological Innovation, Design and Aesthetic Ideation activities eligible for the tax credit pursuant to art. 1, paragraphs 198-208 of Law no. 160/2019 (for the tax periods 2020 onwards) and within the scope of Research and Development activities pursuant to art. 3 of Legislative Decree no. 145/2013 (for the tax periods 2015-2019).
With the publication of the guidelines, therefore, the regulatory process ends and the technical certifiers registered in the specific Register held by MIMIT will be able, starting from July 8, to send the Certification Models requested by the Companies to the dedicated platform.
The importance of the technical certification, once obtained, lies in the possibility of inhibiting any disputes from the tax authorities on the eligible nature of the activities carried out by the companies, limiting the long trail of disputes, assessment notices and tax disputes that have arisen on this incentive discipline starting from FY 2015.
This opportunity, therefore, must be considered an important instrument of legal civilization and it must be carefully evaluated by all companies, especially those that have obtained (or expect to obtain) significant amounts of tax credit and that have not yet been subject to tax assessment by the tax authorities.
The procedure for obtaining technical certification is relatively long (from a minimum of 90 days to a maximum of 180 days), therefore it is advisable for companies to start the procedure as soon as possible to identify a certifier and prepare the necessary supporting documentation.
In particular, the procedural steps for obtaining certification are the following:
- access the Mimit website to choose a suitable certifier with respect to the subject matter of certification (the eligible activities);
- transmission of the certification application, together with the declaration of acceptance of the assignment by the certifier and payment of the secretarial fees (252 euros);
- preparation of the certification request based on the model made available by the Ministry;
- transmission of the certification to Mimit, within 15 days of issuing it to the company;
- if, within 90 days of receiving the certification, Mimit does not request further documentation, the certification is considered obtained. However, if the Mimit requests additions, the certification is still considered to have been obtained after 60 days from the date of sending the additional documentation. Naturally, the MIMIT could also deny the certification if, in the event of proven reasons, the activities were considered not eligible according to the applicable guidelines.
Content of the Guidelines
The Guidelines draw their foundation respectively from the MISE Decrees of 26 May 2020 and MEF Decrees of 27 May 2015, as well as from the general principles and criteria contained in the international Manuals prepared on the subject by the OECD, namely the Frascati Manual regarding the qualification criteria for R&D activities and the Oslo Manual for the qualification criteria for technological innovation activities. These guidelines will be integrated and updated from time to time in accordance with regulatory changes, case law or established practice orientations. The document is divided into four main sections, namely:
Section One: Research and Development Activities pursuant to art. 1, c. 200, L. n. 160/2019
In this section are defined the five criteria of the Frascati Manual (novelty, creativity, uncertainty, systematicity, transferability and/or reproducibility) that must be satisfied, taking into account specific operational considerations for the qualification of projects as R&D activities. One of the guiding criteria for the certifiers must be the “uncertainty” on the technical feasibility and/or on the approach to be followed in the research projects. In fact, the difficulty, represented by risks of failures or redesigns, encountered in achieving the research objectives must be also demonstrated.
Second Section: Research and Development Activities pursuant to art. 3, Legislative Decree no. 145/2013
This section examines the discipline of the R&D tax credit and the related eligible activities for the tax periods from 2015 to 2019 (old discipline). It is thus confirmed that the certifiers must follow the general principles and criteria set out in the Frascati Manual also for the activities regulated by art. 3 of Legislative Decree no. 145/2013.
Section three: Innovation pursuant to art. 1, c. 201 of Law no. 160/2019
The requirements that define an Innovation activity are identified in light of the criteria provided by the Oslo Manual (knowledge, novelty with respect to potential uses, implementation and effective use, value creation), distinguishing between “general” and “technological” Innovation activities. An in-depth study is dedicated to the topic of digital innovation 4.0 which includes the adoption of solutions to improve the operational management of production and/or the simulation of production processes. The activities eligible for the tax credit are distinguished from other forms of renewal such as, among others, the modification of the aesthetic characteristics of the products, company management techniques and business strategies. In this section there is the correct definition of what distinguishes a “new” product or process from a significantly improved one.
Section four: Design and Aesthetic Ideation pursuant to art. 1, c. 202 of Law no. 160/2019
This section outlines the activities that can be admitted to the design and aesthetic ideation tax credit, that are all those activities that end with the creation of samples not intended for sale, which concern only the “pre-competitive” phase, dividing them into the four phases defined below:
- ideation: activities aimed at identifying fashion or style trends. This includes trips to pre-selection fairs, subscriptions to magazines, trend books and other sources of information for the preparation of collections;
- design: this phase involves the work of external designers or the internal staff to the creation of new collections or samples. Once the product has been designed, it must be adapted to the needs of the market or the working characteristics of the company. Not all original projects end up becoming prototypes. Some are not accepted. The selected designs are defined until the set of technical sheets of the first version of the corresponding prototypes is obtained;
- materialization: based on the technical sheets resulting from the second phase, the first versions of the prototypes will be produced. The latter may undergo modifications, the result of several tests, which materialize in different versions of the prototype until the final version of the same. This final version of the prototype can be reported in a catalog.
- pre-series, marketing and distribution: the pre-series is a series of small spins that will be used to show the products to retailers, at fairs, etc. Marketing expenses range from the creation of the catalogs to the advertising campaign.
Of the four phases that characterize the design and realization of a new collection or a new sample, only the expenses related to phases 2 and 3 are eligible for the tax credit.
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