The "new" Patent Box

19 january 2022

The "new" Patent Box

The Patent Box is a tax relief, which consists in a tax saving related to the exploitation of legally protected assets. This type of facilitation has undergone various changes over time and in this news we will try to understand what are the innovations introduced by the 2022 Budget Law and what are the issues still to be clarified.

 

The Old Discipline

The Patent box has undergone several "changes of course" over time.

The provision contained in Legislative Decree no. 146/2021, published in the Official Gazette on 21 October 2021, effective from 22 October 2021, introduced a real "turning point", since the structure of the subsidy measure has been completely revolutionized .

In fact, before this change, which was then definitively regulated in the 2022 budget law, provided that the tax relief was determined (very briefly) by applying a tax change in reduction of 50% of the taxable amount generated by the income deriving from:

  • software,
  • patents,
  • trademarks,
  • designs, models and legally protectable information.

The procedure envisaged, before the 2019 Growth Decree, a so-called "Ruling" with the Revenue Agency, where an agreement was previously found in advance on the method of determining the taxable amount.

 

The Growth Decree subsequently provided for the possibility for taxpayers to independently calculate the tax benefit, using it in three years rather than completely in the tax year.

 

The innovations introduced by the Budget Law

Article 6 of Legislative Decree no. 146/2021 (hereinafter also the Fiscal Decree), in its original formulation, allowed the deductible amount of research and development costs incurred by the holders of business income in relation to the following assets to be increased by 90% :

  • copyrighted software;
  • industrial patents;
  • designs and models;
  • legally protectable processes, formulas and information relating to experiences acquired in the industrial, commercial or scientific fields;
  • trademarks.

The tax savings deriving from the facilitation introduced by the Tax Decree, in the presence of an overall tax rate (IRES and IRAP) of 27.9%, was equal to 25.11% of the costs incurred.

The concession is applicable on condition that the subject carries out research and development activities aimed at the creation and development of intangible assets used (directly or indirectly) in carrying out the business activity. The research and development activity may also not be carried out directly by the subject but through research contracts stipulated with universities, research bodies and equivalent bodies or "unrelated" companies (directly or indirectly) to the subject requesting the facilitation.

 

The Budget Law intervened under a double profile: the increase in the research and development costs incurred went from 90% to 110% and the basket of eligible goods was reduced to the following:

  • copyrighted software;
  • industrial patents;
  • drawings and models .

 

Therefore, an increase in the subsidy was made in the face of a reduction in subsidized assets.

 

It is important to underline that the calculation method and other practical aspects will be defined by a provision of the Director of the Revenue Agency.

With reference to the subsidized costs, it is, however, presumable that it will be the subsidized costs in the old Patent Box.

 

It is important to underline that, by deleting paragraph 9 of article 6 of this decree, the Budget law has eliminated the prohibition of accumulating this facility with the tax credit R&D ..

 

As soon as news is available on the subject, we will publish further updates.

 

 

 

Lorenzo Rogai

 

Chartered Accountant Statutory Auditor

 

 

For any other information, please contact Rogai & Partners stp Srl

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