With its Reply No. 190/2023 of 6 February 2023, the Italian Revenue Agency reiterates that opting for the flat-rate regime entails the impossibility of expressing the option for the impatriate regime a posteriori.
The taxpayer’s request to the Italian Revenue Agency
In the request, the taxpayer clarifies that, having returned in 2020 after a period abroad, he started a self-employment activity by opting for the flat-rate income regime (Article 1, paragraphs 54 to 89, Law No. 190/2014).
Therefore, the taxpayer asks the Agency whether he can benefit from the impatriate regime (Article 16 of Legislative Decree No. 147/2015) for the remuneration related to the future appointment as a member of the Board of Directors of certain companies. Such remuneration can be classified as income assimilated to employment income, pursuant to Article 50(1)(cbis) of the TUIR, since the regulatory conditions for the application of this special regime would be met.
Clarifications from the Agency
In its reply, the Agency first recalls the regulatory frameworks of the two regimes.
The Inpatriate Tax Regime
Starting with the impatriate regime, the Agency recalls that this was introduced in order to promote the transfer of highly qualified workers to Italy and, at the same time, boost the technological, scientific and cultural development of our country.
The regulatory changes introduced in 2019 have provided for a reduction in the taxable income applicable to the categories of employment income and similar income, self-employment and business income earned in the form of a sole proprietorship, which are considered to be produced in the territory of the State.
If the conditions set forth in Article 16(1) or (2) are met, such income contributes to the formation of the overall income, limited to 30%, starting from the tax period in which the transfer of residence took place and for the four following tax periods.
The Italian Regime Forfettario
On the other hand, the flat-rate regime, which is the ‘natural’ regime for natural persons carrying on a business, artistical or professional activity on an individual basis, implies the determination of taxable income on the basis of a flat-rate criterion, applying a profitability coefficient to the amount of remuneration received at a different rate depending on the activity exercised. Then, a substitute tax of 15% is applied, to replace income tax, regional and municipal surcharges, and regional tax on production activities.
This implies that the income thus determined does not contribute to the formation of total income.
In this regard, Circular No. 33/E of 2020 (see paragraph 7.11) clarified that taxpayers who return to Italy to carry out a self-employed activity applying the flat-rate regime may not avail themselves of the regime provided for impatriate workers, as the income produced under the flat-rate regime does not take part in the formation of the overall income.
However, if the requirements are met, impatriate workers can choose to adhere to the tax regime provided for impatriates, where this is considered more convenient.
Therefore, the Agency confirms, in line with the practice document, that the applicant that has opted for the determination of his income according to the flat-rate regime when returning to Italy, does not have the possibility to express a posteriori the option for the different impatriate regime.
This is because the option already exercised constitutes a conclusive conduct which indicates the will to not take advantage of the impatriate regime, from the time of return to Italy.