The Court of Review of Trieste expresses itself regarding the requirements to consider the existence of a “permanent establishment”
On May 22nd, by granting an application filed on behalf of the legal representative of a Turkish corporation operating in the transport sector – who was under investigation for the crime provided by art. 4, of Legislative Decree 74/2000, because he had allegedly failed to declare a turnover of half a million Euros, thus evading payment of three hundred thousand Euros in taxes – the Court of Review of Trieste ordered the cancellation of the decree of precautionary seizure.
The Court believed the defense’s claims regarding the non-existence of fumus for the issuance of the precautionary measure -by means of which the public prosecutor of Trieste had blocked the current accounts of the person under investigation and had seized his home and cars- were well grounded.
In this case the Italian Revenue Agency concluded, after a series of formal and substantive controls, that the Turkish company had not carried out an entrepreneurial activity through a representative office in Italy but through a permanent establishment, which should have implied the taxation of the income produced by non-residents in the Italian territory.
However, it should be noted that in accordance with Articles 5 of the OSCE Convention to prevent double taxation and 162, I para. Presidential Decree 917/1986, the term “permanent establishment” means “a fixed place of business through which the non-resident enterprise fully or partly performs its activity within the territory of the State“. There is, though, no “permanent establishment” if the place of business is used to carry out preparatory or auxiliary activities that do not constitute a crucial part of the business and that, consequently, contribute just marginally to the realization of profits.
The application for release from seizure, submitted on behalf of the person under investigation, thus pointed out that the activity carried out by the representative of the Turkish company had consisted in a mere aid to the transport organized by the company based in Turkey (e.g. supplying the Turkish drivers with the money needed to pay travel expenses from the port of Trieste to their destination) while it had not been a significant and essential part of the business taken as a whole.
The defense argument was accepted by the Court of Review which adhered to the view taken by other Courts according to which, in order to be classified as a “permanent establishment“, elements such as telephone numbers belonging to the representative office, presence of an office (which consists of a very small room), of an employee, of a rent contract, performance of intra-community transport-
ation and existence of a VAT number, alone, must not be taken into account. For the purposes of classification as a permanent establishment and the consequent taxation of the income produced in Italy by a non-resident subject, the presence of an organizational structure able to independently plan and determine the activities to be undertaken is necessary. This kind of structure seemed entirely missing in this particular case both according to the defense and to the Court.
(Trieste Office – Federica Fantuzzi – 0039(0)407600281)
