montecarlo, march 11, 2014
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Montecarlo, march 11, 2014. The role of Italian Fiduciaries and their co- operation with banks Atty . Fabrizio Vedana. Asset Abroad : where to keep them. - PowerPoint PPT PresentationTRANSCRIPT
Montecarlo, march 11 20141
Montecarlo, march 11, 2014
The role of Italian Fiduciaries and their co-operation with banks
Atty. Fabrizio Vedana
Montecarlo, march 11 20142
Asset Abroad : where to keep them
FATF-GAFI in its recommendations (October 2012) regarding «Managing the anti-money laundering and counter-terrorist financing policy implications of voluntary tax compliance programmes» as well as The Italian Government law 4/2014 with relation to Voluntary Disclosure determine that financial or real estate assets concerning the voluntary disclosure can be:
A) transfered to the ‘Country of origin’ that is the Country where the taxpayer(s) have their place of residence. (e.g.Italy)
B) remain in the ‘host country’ that is the country where they are located.
In such a case, on the basis of the Host Country’s being or not in ‘the black list’, sanctions will be determined (higher in case the assets remain in a non co-operative Country).
Montecarlo, march 11 20143
Transfering Assets to Italy through a Fiduciary
In option A, the taxpayer would open a bank account/bank deposit/ portfolio management with the Italian Bank/Intermediary, which through Know Your Client procedure in compliance with the Anti-money laundering law will carry out the role of withholding agent.
Making use of a Fiduciary would in these cases be only for privacy concerns.
Montecarlo, march 11 20144
Leaving Assets abroad: how?
In option B, the taxpayer could choose between two possible solutions:
1) to personally hold the assets in their own name : in such case the taxpayer should fill in all the required tax-declaration forms (the so called Quadro RW), make the needed tax calculation and proceed with its payment. (see : Agenzia Entrate newslater n. 38/E del 23 dicembre 2013)
2) To hold the assets under a fiduciary mandate: in such case the fiduciary will act as a withholding agent in accordance with the fiduciary contract and the Italian law.
Montecarlo, march 11 20145
Leaving Assets abroad with a Fiduciary
In the event that the taxpayer(s) decide to leave their financial and/or real estate assets abroad through a fiduciary company, they could opt for:
1) keeping the activities (assets) in the name of the Fiduciary thus signing a classic fiduciary mandate.
2)not assigning their assets especially property ones (real estate,shares etc) to the Fiduciary Company thus signing a ‘light’ fiduciary mandate in which the Fiduciary acts only as a withholding agent.
Montecarlo, march 11 20146
Signing a classic fiduciary mandate-Part 1
The start of the Fiduciary mandate will be structured in:
- Meeting, in Italy or abroad, with the potential client (or their banking/law representative Italian or foreign). Collecting data and information in compliance with the Anti-money laundering Law.
With relation to Voluntary Disclosure the Fiduciary Company will obtain even proof of the written agreement the client has signed or is in the process of signing with the fiscal authorities.
- Verifying the client’s data with the Anti-money laundering Office
Montecarlo, march 11 20147
Signing a classic fiduciary mandate-Part 2
- Meeting the client at the Fiduciary Company offices or another agreed upon place.
- Opening a bank account in the name of the Fiduciary (in Italy or abroad). The Fiduciary will communicate the client’s name in case required by the Anti-Money laundering Law.
- Transfering financial instruments/current assets from the client’s bank account/bank deposit to the Fiduciary’s bank account/bank deposit.
Montecarlo, march 11 20148
Signing a classic fiduciary mandate-Part 3
The Fiduciary has to carry out various legal requirements such as data registering in AUI (Centralized Computer Archive), provide information for Fiscal Information Database, fullfil the requirements related to FATCA, carry out activities as a withholding agent as well as calculate and deposit the stamp duty (so called imposta bollo).
In order to enable the Fiduciary to fullfil all the legal requirements especially those related to its role as a withholding agent, the Fiduciary Company must receive a complete and up-to-date data flow according to a beforehand agreed procedure.
Montecarlo, march 11 20149
Signing a light fiduciary mandate-Part 1
Light Fiduciary mandate means without assigning the assets in the name of the Fiduciary i.e. mere administering (in Italian - incarico senza intestazione fiduciaria).
The process of signing the abovementioned mandate is substantially the same as the classical one. However the taxpayer needs to open a bank account/bank deposit in their own name with a foreign bank.
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Signing a light fiduciary mandate-Part 2
Signing such a mandate allows the client to:
- Assign the Fiduciary Company to act as a withholding agent without the need to put the bank account/bank deposit in the Fiduciary’s name. This simplifies the Clients practicality, who can directly give instructions to the bank to purchase and/or sell securities without needing to give prior instructions to the Fiduciary Company.
- Assign the Fiduciary Company to act as a withholding agent even about non financial assets such as real estate, works of art, shares, etc.
Even in this case, in order to guarantee the punctual and prompt fulfillment of the legal requirements especially those related to its role as a withholding agent, the Fiduciary Company must receive a complete and up-to-date data flow according to a beforehand agreed procedure.
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Remember:1) The client’s assets will be separate from the assets of the Fiduciary Company.
2) The Fiduciary Company maintains only proof of entitlement and ‘legitimatio ad causam’ over the clients’s assets; the Fiduciary does not have real ownership.
3) The Fiduciary Company will act exclusively prior client’s instructions.
4) The fiduciary mandate is revocable.
5) The Fiduciary cannot operate in the abstance of funds made available by the client.
6) The Fiduciary Company is not a bank/asset manager; there is no competition
with banks/intermediaries .
7) The Fiduciary is to be considered a tool which enables the taxpayers to
Legally maintain their assets abroad.
8) The Italian Fiduciary Company needs to be authorized and admitted in the
Ministry of Economic Development Register.
9) The Italian Fiduciary Companies are monitored by the Bank of Italy
and Ministry of Economic Development.
10) In compliance with the Anti-money Loundering law the Fiduciary Company
cannot receive payment in cash higher than 999,99 Euro.
Montecarlo, march 11 201412
Contact details:
UNIONE FIDUCIARIA
Milan: 02-724221
Rome: 06-4203381
Lorenzo Sacchi , Deputy General Director – Fiduciary Area Director
Giovanna Elmi , Fiduciary Area Deputy Director
Marco Finocchi Financial Director, Rome Office
Fabrizio Vedana - Deputy General Director
Montecarlo, march 11 201413
VOLUNTARY DISCLOSURE: LAST CHANCE!
Montecarlo, march 11 20141414