Ruling n. no. 46 of 2023. Dividends distributed in Switzerland with exemption even if the Swiss company is exempt from taxation at the municipal, cantonal or federal level.

31 July 2023

By Resolution no. 46 of July 31, 2023, the Italian Tax Authoriy overcomes its previous restrictive positions regarding the interpretation of the subjective requirement of being subject to corporate income tax “without benefiting from exemptions” provided by Art. 9 of the Switzerland-EU Agreement, which establishes a regime similar to the Mother-Daughter Directive for dividend flows paid by daughter companies established in EU member states to parent companies resident in Switzerland (and vice versa).

In particular, the Tax Administration adopted the guidance expressed by the EU Court of Justice in its judgment 𝘞𝘦𝘳𝘦𝘭𝘥𝘩𝘢𝘷𝘦 𝘉𝘦𝘭𝘨𝘪𝘶𝘮 (C-488/15), where it had been held that the Mother-Daughter Directive exemption can be disallowed only in the case of total exemption (zero rate) of profits, the expected requirement of taxation “without benefiting from exemptions” not being fulfilled only in such a case. The application of this guideline in the context of Art. 9 of the Switzerland-EU Agreement thus makes it possible to overcome the Tax Administration’s previous closure about the application of the provision to Swiss companies subject to (partial) exemption on at least one of the three levels (municipal, cantonal or federal) of income taxation (see Res. No. 93/2007).