La residenza fiscale dei soggetti Ires e l'inversione dell'onere probatorio di cui all'art. 73, commi 5-bis e 5-ter t.u.i.r

Fiscal residence of companies is a very complex issue, mainly due to the fact that we have to deal with «persons» that do not exist in nature, but are created by national juridical systems. First of all, national legislators can make very different choices with regard to the connecting factors of tax residence, as it happens with international private law rules. With particular reference to the Italian tax system, the connecting factors are the legal seat, the seat of administration and the main object. These last two elements raise many juridical issues, especially with regard to groups and holding companies. Secondly, the notion of fiscal residence plays a specific role in international taxation that must be distinguished from the roles played by the notion of permanent establishment, by CFC legislation and by the beneficial ownership clause. Again, this is particularly true within group structures, where it is not always easy to draw the line between all those concepts. Thirdly, fiscal residence is a quality of juridical subjects, whose identification represents a preliminary issue to be solved. The Italian perspective on this problem is thus analyzed. Fourthly, domestic rules must be coordinated with international rules, in particular with DTC. This requires to examine the role of fiscal residence in DTC and the impact of DTC on the burden of proof. Fifthly, national legislators can adopt measures in order to contrast fictitious fiscal residence. This is what recently happened in Italy with law decree n. 223/06 regarding foreign holding companies owning shares in Italian companies and controlled and/or managed from Italy. According to the new rule, these companies are considered resident for tax purposes in Italy unless they can prove the contrary. This rule is very interesting as it is quite unique in the world. Moreover, it raises a number of technical issues that are dealt within this article as, for instance, its relationship with DTC and with the freedom of establishment principle.