ITALY Law and Practice Contributed by: Paolo Ludovici and Andrea Mirabella, Gatti, Pavesi, Bianchi, Ludovici
The tax base is determined by taking the market value in common trade on the date of the donation or suc - cession. This value is taken from the platform of the exchange where the crypto-assets were originally purchased or from a similar platform where the same crypto-assets are tradable. With reference to the territoriality of the tax, crypto- assets held with platforms providing services related to the use of virtual currency and providers of digi - tal wallet services resident in Italy, as well as cryp - to-assets held on a storage device located in Italy, are considered as located in Italy for the purposes of application of Italian inheritance and gift tax. Given the nature of such assets, whereby the loss of private keys may result in the wallet’s inaccessibility, advisable actions for the purposes of crypto-asset succession include indicating them in a Will, holding them through a trust or entrusting them to a custody agent. 3. Trusts, Foundations and Similar Entities 3.1 Types of Trusts, Foundations or Similar Entities Trusts The trust is a wealth planning vehicle that is being increasingly used in Italy, and recent clarifications by the Italian tax authorities (see 1.1 Tax Regimes ), pre - ceded by established case law, have provided greater certainty regarding the tax treatment. To date, there is no organic regulation of trusts in domestic law. Trusts may be distinguished according to their differ - ent uses and purposes, for example: • a “purpose trust”, established for the pursuit of a specific purpose identified by the settlor; • a “family trust”, established for asset protection and succession planning; • a “Dopo di Noi trust” (“After Us Trust”), established for the benefit of individuals with severe disabilities in compliance with the requirements of Law No
112 of 22 June 2016 (the “After Us Law”, Legge sul Dopo di Noi ); • a “guarantee trust”, established to protect the interest of one or more creditors of the settlor; and • a “liquidating trust”, established to carry out the liquidation of the assets of the settlor. Foundations Italian foundations are generally used for social pur - poses only and are strictly regulated by the public authorities. A foundation can be regarded as an efficient way to preserve important cultural and artistic heritage (eg, it can be used to set up a family museum). A foundation is a legal entity whose main purpose is to assist a social, cultural or charitable need, and thus, the assets of the foundation have to assigned for the specific goal for which it was incorporated. Foundations are subject to CIT and, to such end, can qualify as a commercial or non-commercial entity. If the foundation carries out certain qualified activities or qualifies as an ONLUS or third sector entity, it may not be subject to CIT. (For the sake of completeness, it should be noted that the reform of the third sector repeals the provisions on ONLUS. ONLUS may decide whether to adapt to the third sector regulations and become third sector entities). Foundations are among the entities eligible to qualify as Third Sector Organisations and thereby benefit from the related tax incentives, which shall take effect from 2026 tax year (see 10. Charitable Planning ). 3.2 Recognition of Trusts Trusts have no specific civil law discipline in Italy and are recognised under the Hague Convention. As there is no domestic legislation relating to trusts, they can only be established in Italy in accordance with the Hague Convention and subject to a foreign governing law. The Italian Supreme Court of Cassation (No 9637 of 19 April 2018) has confirmed that trusts are not atypical arrangements and are recognised in the Italian legal
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