Patent Box: Implementation Rules Ready

With remarkable timeliness, last February 15th the provision of the Revenue Agency No. 48243/2022 was published which made the new edition of the Patent Box operational, introduced by the Tax Decree (Legislative Decree 146/2021, Article 6) and redefined by Budget Law 2022 (Law 234/2021, Article 1, paragraphs 10-11), replacing the repealed Patent Box dating back to 2015.


The new incentive consists of a 110% increase in the expenses incurred by a so-called "investor" for the development, growth, maintenance, protection and exploitation of subsidized intangible assets, thus allowing for a wider deductibility for the purposes income taxes and IRAP .

It is worth noting that the provision of the Revenue Agency has confirmed that the concessionary perimeter does not refer, therefore, only to the creation of intangibles.

The main indications for implementing the new optional incentive regulations are summarized below, in order to allow taxpayers who own business income to adhere to the subsidy regime, as well as to avail themselves of the related sanction exemptions when checking.

SUBJECTS WHO CAN EXERCISE THE OPTION. 

The incentive is dedicated to holders of the right to the economic exploitation of certain facilitated intangible assets, who make investments in "relevant activities" (R&D, Innovation and Design) as part of their business activity, as "investors" , that is, bearing the related costs and remaining affected by them, assuming the risks and making use of any results . By "assumption of risk" we mean the actual performance of activities that involve risk control, according to the principles and criteria set out in Chapters I and VI of the Guidelines issued by the OECD on transfer pricing for administrations tax and multinational companies.

All business income holders can opt for the new Patent Box regime, or: 

  • A) natural persons who carry out commercial enterprises pursuant to article 55 of the TUIR; 
  • B) joint stock and limited partnership companies, limited liability companies, cooperative societies and mutual insurance companies, as well as European companies and European cooperative companies resident in the territory of the State; 
  • C) public and private entities other than companies, as well as trusts, resident in the territory of the State, which have as their sole or main object the exercise of commercial activities; 
  • D) public and private entities other than companies, trusts that do not have as their sole or main object the exercise of commercial activity as well as collective investment schemes resident in the territory of the State, in relation to any commercial activity carried out; 
  • E) general partnerships and limited partnerships resident in the territory of the State, whose income is attributed to each partner, regardless of the perception, in proportion to its share of  the profits; 
  • F) companies and entities of all types, including trusts, with or without legal personality, not resident in the territory of the State, resident in countries with which an agreement is in force to avoid double taxation and with which the exchange of information is effective, with a permanent establishment in the territory of the State to which the intangible assets are attributable.

The option cannot be exercised by companies that determine taxable income on a cadastral basis or on a flat-rate basis , or in a state of voluntary liquidation, bankruptcy, compulsory administrative liquidation, arrangement with creditors without business continuity, other insolvency procedure provided for by RD 267/1942 , by the code referred to in Legislative Decree 14/2019, or by other special laws or which have an ongoing procedure for the declaration of one of these situations.

OBJECTIVE SCOPE: DEFINITION OF FACILITATED INTANGIBLE ASSET. 

"Relevant activities" can be facilitated with reference to the following intangible assets:

  • a) copyrighted software ;
  • b) industrial patents - including patents for inventions, biotechnological inventions and related complementary protection certificates - utility model patents , as well as patents and certificates for plant varieties and topographies of semiconductor products ;
  • c) legally protected designs and models ;
  • d) two or more intangible assets among those indicated in the previous letters from a) to c), linked together by a bond of complementarity , such that the creation of a product or a family of products or a process or group of processes is subject to the joint use of the same.

A condition for taking advantage of the facility is that these assets are used directly or indirectly (by granting the right to use the intangible assets) in carrying out their business activities.

OBJECTIVE SCOPE : DEFINITION OF "RELEVANT ACTIVITIES". 

The indication of the Revenue Agency aimed at applying the defining system of the R&D Innovation and Design tax credit in force from 2020, where the primary rule generically includes Research and Development activities as "significant activities", appears to be acceptable. Therefore, in the light of recent clarifications, it is possible to apply not only the paradigm of the Frascati Manual , but also that of the Oslo Manual .

Indeed, by "relevant activities" we mean:

  • a) activities that can be classified as industrial research and experimental development pursuant to article 2 of the decree of 26 May 2020 of the MISE;
  • b) activities that can be classified as technological innovation pursuant to article 3 of the decree of 26 May 2020 of the MISE;
  • c) activities that can be classified as design and aesthetic ideation pursuant to article 4 of the decree of 26 May of the MISE;
  • d) the activities of legal protection of the rights on intangible assets .

The "relevant activities" must be carried out in laboratories, or structures, located in the territory of the Italian State, in States belonging to the European Union, or in States adhering to the European Economic Area with which Italy has entered into an agreement that ensures a effective exchange of information.