the capital gain is not taxed

Flat-rate scheme is company transfer, capital loss and capital gains fall into the tax exemption regime. Unlike the consideration attributable to thestart, to be subject to separate taxation or to be included in theamount of compensation or revenue received in the tax period. The Inland Revenue clarifies with the response to interpellation number 478 of 11 November 2019.

The cue to shed light on the right treatment to apply to the operation comes, as usual, from theanalysis of a practical case. The protagonist is a subject that in March 2019 sold the asset it exercised including the goodwill and closed its VAT number.

Revenue Agency – Reply to Interpellation No. 478 of 11 November 2019

Article article 1, paragraph 64, of the law of 23 December 2014, n. 190 (flat rate). Capital gain on the sale of the company.

Flat-rate scheme and company transfer: the capital gain is not taxed

The tax payer believes he owns the requirements to apply the so-called flat rate for 2019, year in which from January to March it did not carry out any active operation, consequently it was not put into place any "Conclusive behavior".

It turns to the Revenue Agency to verify the possibility of applying the tax exemption regime of the capital gain which derives from the transfer of the company, as a consequence of the application, starting from 1 January 2019, of the flat-rate scheme.

In support of his position, the tax payer recalls the circular number 10 / E of 4 April 2016 according to which losses and the capital gains carried out in the course of flat rate scheme they do not have no tax record, even if they refer to goods purchased in the years preceding the adoption of the regime.

The Revenue Agency, with the answer number 478 of 11 November 2019, partially confirms the solution by establishing a difference:

• no taxation is due for any capital losses or capital gains that derive from the sale of company;
• the'start does not fall under the non-regime taxability.

Flat-rate scheme and company transfer: non-taxability for the capital gain, but not for goodwill

With the response document, the Inland Revenue motivates both clarifications.

On the first point which confirms that they are not subject to capital gains and losses made with company transfer for those falling within the flat-rate regime, we refer to theevolution of the reference legislation.

As specifies the circular number 10 of 2016, there is no reference to tax treatment to be reserved for capital gains and losses, whose taxability was instead made explicit in article 1, paragraph 104, of law number 244 of 24 December 2007, which regulated the previous regime dedicated to smaller tax payers.

It is read:

The changed letter of the law, with a view to greater simplification, makes it possible to believe that the capital gains and losses realized during the regime have no fiscal significance, even if they refer to goods purchased in the years that preceded the adoption of the flat rate scheme.

In support of this interpretation, the circular notes, moreover, as the regulation dictated by paragraph 72 of article 1 of law n. 190 of 2014, with regard to the criteria for determining the capital gains / losses realized after leaving the regime, constitutes an "implicit confirmation of the will of the legislator of do not attribute any importance to capital gains / losses carried out during the flat-rate regime due to the disposal of capital goods ".

The same speech it cannot be valid for the amount attributable to the goodwill: it is not a capital gain related to an asset related to the company whose cost has not been subject to deduction for tax purposes, but it is a representative value of the prospective income capacity, and is attributable to thescope of revenues.

For the consideration relating to the goodwill, therefore, the tax payer has two choice options:

• subject it to separate taxation;
• to do it contribute to the determination of the amount of revenue or compensation received in the tax period 2019, to which apply the profitability coefficient to determine the taxable income.

The second way is possible, of course, only if he has the requirements to apply the flat-rate scheme.