Il trust quale strumento di passaggio generazionale: problematiche fiscali

Abstract

This concise contribution reconstructs the genesis of the trust institution within the Italian legal system, passing - then - to outline the fiscal aspects in terms of direct taxes having regard to the concept of “(relative) subjectivity of the trust”, where the beneficiaries are not expressly identifiable or, in any case, even if identifiable, discretion is left to the trustee regarding the distribution of the income produced by the trust in favor of the beneficiaries themselves. Given the particular suitability of the trust institution to act as an instrument of generational handover, the entire doctrinal, jurisprudential and practice evolution of the Revenue Agency on the subject of indirect taxes applicable to the act of endowment of trust assets by the of the settlor. After an initial restrictive thesis of the Revenue Agency, also supported by the jurisprudence of the Court of Cassation - which considered the trust endowment deed a real transfer of assets in favor of the trustee with consequent applicability of indirect taxes (inheritance , mortgage and cadastral) to a proportional extent - the same Court of Cassation, under the unanimous push of primary doctrine, has begun to totally change course to produce as many as 26 different Judgments in which the principle of non-existence is affirmed - following the deed of endowment in trust - of an effective enrichment for the trustee, with consequent inapplicability, to the provisions of this deed, of proportional indirect taxes. Finally, the Revenue Agency, first with a draft Circular issued on 11 August 2021, subsequently made definitive by issuing Circular no. 34 / E of 20 October 2022, has definitively implemented the aforementioned orientation