ITALY Trends and Developments Contributed by: Paolo Ludovici, Marlinda Gianfrate and Luca Tortorella, Gatti Pavesi Bianchi Ludovici
performance of the foreign investment vehicle of more than 25% – to this end, the rights to profit of other entities belonging of the same group as the asset manager should also be taken into account; and • the asset or investment manager receives arm’s length remuneration for services carried out to the benefit of another group’s entities and provides disclosure in specific transfer pricing documentation. As clarified by the IRA on 19 November 2024 in a dedicated circular letter, the IME safe harbour does not apply to foreign management compa - nies, but only to foreign investment vehicles and their controlled entities. The foreign investment vehicle and its independence For the IME to apply, the foreign investment vehicle must meet independence criteria speci - fied by the Ministerial Decree. According to the Decree, the following foreign investment vehicles are deemed to meet the independence require - ments (ie, they can be considered independent vis-à-vis their investors). • Collective investment undertakings estab - lished in an EU member state, or in a state included in the European Economic Area, that either comply with Directive 2009/65/EC of 13 July 2009 (the “UCITS IV Directive” ) or have a manager who is subject to supervision in the state where it is established under Direc - tive 2011/61/EU of 8 June 2011 (the “AIFM Directive” ). • Collective investment undertakings, other than those mentioned in the previous item, that (i) raise capital from a plurality of inves - tors and manage assets as a pool in the interest of the investors, and independently from them according to a predetermined
investment policy; and (ii) are directly subject to, or have a management entity subject to, prudential supervision and have governing regulations that are substantially equivalent to the UCITS IV Directive or AIFM Directive. With reference to “prudential supervision” , this requirement is met when the commencement of the activities of the collective investment undertakings or their manager is subject to prior authorisation, and the ongoing operation of such activities is continuously monitored through mandatory regulatory controls by the competent regulatory/supervisory bod - ies, according to the regulatory framework applicable in the country of establishment. The condition of substantial equivalence of governing regulations to the UCITS IV Direc - tive or AIFM Directive is satisfied when the regulations of the foreign state are based on the principles that inspired the aforemen - tioned European Directives. This means that it must be ascertained that the collective investment undertakings have a plurality of investors, managed collectively in the inter - est of investors and independently from them on the basis of a pre-determined investment strategy, but also that regulations aimed at ensuring compliance with such requirements exist and are properly in force. • Entities (other than those referred to in the previous two items) that are subject to pru - dential supervision, and are primarily or exclu - sively dedicated to investing capital raised from third parties according to a predefined investment policy, provided that the following conditions are met: (a) no person holds more than 20% of the share capital or assets (such computa - tion also includes stakes held by “closely related” parties) – in case of master-feed - er structures, a look-through approach must be adopted; and
225 CHAMBERS.COM
Powered by FlippingBook