THE REGULATION ON ‘INNOVATIVE’ STARTUPS IN ITALY
- 26 maggio 2015
The Italian government in the past few years enacted a new regulation, which have recently be amended and updated (the ‘Regulation’),[i] aimed at encouraging innovation through the creation and development of new companies qualified as ‘innovative startups’. Several incentives as well as exceptions to the general rules applicable to enterprises are provided by the Regulation to stimulate investments in innovative startups. The key provisions concern:
- the assignment of equity participations or other work for equity instruments to employees, directors and consultants as their remuneration;
- tax incentives for the startups, the investors and the employees and consultants who subscribe equity participations or other work for equity instruments;
- public offerings of quotas of startups incorporated under the form of limited liabilities companies, also through crowdfunding online portals;
- corporate benefits and exceptions to bankruptcy law provisions;
- cost reduction for the setting up of a new company; and
- the definition of a fixed-term employment contract departing from general labor law.
Definition of ‘Innovative’ Startup
To be ‘innovative’, a startup shall:
- develop, produce and trade innovative goods or services having a high technological value and such activities should represent its exclusive or prevailing core business; and
- meet at least one of the following alternate requirements:
– the costs allocated to research and development must be equal to or higher than 15 per cent of the higher value between (i) the company’s production costs and (ii) the company’s production value;
– at least one-third of its work force shall be represented by individuals having a Ph.D. or carrying out a Ph.D. or having a degree and having completed a research program of three years at public or private research entities in Italy or abroad. Alternatively, at least two thirds of its workforce shall be composed of individuals with a master degree; or
– the startup shall be the owner or assignee, or have applied for the registration with the relevant authorities, of an industrial property right (eg, a patent) related to its core business; as an alternative, the startup shall be the titleholder of the rights relating to an original software duly registered with the special public registry for software. In addition to the above, the innovative startup shall also satisfy the following requirements:
- it has to be a private stock company (such as a joint-stock company or a limited liability company[ii] or a cooperative) not listed on a regulated market or on a multilateral negotiation system and with fiscal residence in Italy or in one of the member States of the European Union or of those member States of the European Economic Space, provided that, in these latter cases, the startup has its operating office or branch in Italy ;
- it has to be incorporated since no more than 60 months;
- it cannot distribute profits and it must not have distributed profits since its incorporation;
- starting from its second year, the total value of its activity shall not exceed € 5m resulting from its last yearly approved balance sheets; and
- it shall not result from a merger, de-merger or transfer of business or a part thereof.
Generally speaking, the age, nationality or residence or domicile of the founders and investors is not relevant. A startup will be qualified as ‘innovative’ upon its enrolment with the special sector of the companies’ register of the place where it has its registered office. On the assumption that all the above law requirements remain unchanged, a startup is considered ‘innovative’ only for the first four years following its incorporation. A different term, not exceeding six years, will apply in case the startup has been incorporated before the enactment of the Regulation. Main Corporate Benefits Special advantages are provided for startups incorporated under the form of limited liability companies. Such companies will be entitled to:
- create and issue categories of quotas granting special patrimonial and management rights to its quota-holders;
- offer its quotas to the public, also through crowdfunding online portals;
- issue financial instruments (‘strumenti finanziari partecipativi’) also against the contribution of work and services from its quota-holders or third parties;
- perform transactions on its own quotas (e.g., purchase its own quotas or accept them as guarantee, etc.) provided that such transactions are aimed at implementing incentive plans in favor of employees, directors and consultants.
Regardless of the type of company, any innovative start-up will have:
- longer term to adopt the necessary remedies to cover losses departing from the general corporate law;
- the possibility to raise funds by using crowdfunding portals under a specific and simplified procedure issued by the Italian public authority responsible for the Italian securities market;
- the possibility to remunerate its directors, employees or consultants by assigning work for equity instruments which shall not be taken into account in determining the taxable income of the assignees; and
- the opportunity to save some costs, such as the stamp duty (‘imposta di bollo’ ), the administration fees (‘diritti di segreteria’ ) and the annual fee for the enrolment with the relevant chamber of commerce (‘diritto annuale’ ).
Main Tax Incentives
Individuals or legal entities investing in innovative startups in the years 2013–2016 will be entitled to get some tax relief under certain terms and conditions. Individuals subject to personal tax (‘IRPEF’) may benefit from a tax credit (‘detrazione d’imposta’) equal to 19 per cent of the amount they have invested (either directly or indirectly, for example through an investment fund or other companies investing mainly in innovative startups) in the corporate capital of innovative startups. The tax credit may not exceed € 500,000 for each fiscal year. The amount in excess may be carried forward in the subsequent three fiscal years. Companies and other entities subject to corporate tax (‘IRES’), other than innovative startups, are entitled to a deduction (‘deduzione’) from the corporate taxable base equal to 20 per cent of the amount they have invested (either directly or indirectly, for example through an investment fund or other companies investing mainly in innovative startups) in the corporate capital of innovative startups. The tax deduction may not exceed € 1.8m for each fiscal year. Investors shall keep their equity participation in the innovative startup for at least two consecutive fiscal years, otherwise they will lose any tax benefit. In addition to the above, under certain terms and conditions, innovative startups might benefit from a tax credit equal to 35 per cent of the costs incurred in case of hiring highly qualified employees through open ended employment contracts.[iii] Finally, innovative startups will not be subject to the tax treatment provided for the so-called ‘shell and dormant companies’ which have to pay taxes on a minimum taxable income which is determined on a presumptive basis without taking into account the income or losses effectively reported by the company.[iv]
[i] Law Decree No. 179 of 18 October 2012, passed into Law No. 221 of 13 December 2012 as further amended. The last amendments have been introduced by Law Decree No. 3 of 24 January 2015, passed into Law No. 33 of 24 March 2015;
[ii] The category of the limited liability company also includes the simplified limited liability company (‘società a responsabilità limitata semplificata’). The category of the limited liability company with reduced share capital (‘società a responsabilità limitata a capitale ridotto’) has been repealed by art. 9 of Law Decree No. 76 of 28 June 2013 (passed into Law No. 99 of 9 August 2013).
[iii] Reference is made to Article 27-bis of Law Decree No. 179 of 18 October 2012 (passed into Law No. 221 of 17 December 2012), Article 24 of Law Decree No. 83 of 22 June 2012 (passed into Law No 134 of 7 August 2012) and the Ministerial Decree issued on 22 February 2013.
[iv]Reference is made to the provisions of Law No. 724 of 23 December 1994 and Law No. 148 of 14 September 2011.