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Montecarlo, march 11, 2014

Montecarlo, march 11, 2014. The role of Italian Fiduciaries and their co- operation with banks Atty . Fabrizio Vedana. Asset Abroad : where to keep them.

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Montecarlo, march 11, 2014

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  1. Montecarlo, march 11, 2014 The role of ItalianFiduciaries and their co-operation with banks Atty. Fabrizio Vedana

  2. AssetAbroad : where to keepthem FATF-GAFI in itsrecommendations (October 2012) regarding«Managingthe anti-moneylaundering and counter-terroristfinancing policy implications of voluntarytaxcomplianceprogrammes» aswellas The ItalianGovernment law 4/2014 with relation to VoluntaryDisclosuredeterminethatfinancial or real estate assetsconcerning the voluntarydisclosure can be: A) transfered to the ‘Country of origin’ thatis the Country where the taxpayer(s) havetheirplace of residence. (e.g.Italy) B) remain in the ‘host country’ thatis the country wherethey are located. In such a case, on the basis of the Host Country’sbeing or not in ‘the black list’, sanctionswill be determined (higher in case the assetsremain in a non co-operative Country).

  3. TransferingAssets to Italythrough a Fiduciary In option A, the taxpayer would open a bank account/bankdeposit/ portfolio management with the ItalianBank/Intermediary, whichthrough Know Your Client procedure in compliance with the Anti-moneylaundering law willcarry out the role of withholding agent. Making use of a Fiduciary would in thesecases be only for privacy concerns.

  4. LeavingAssetsabroad: how? In option B, the taxpayer couldchoosebetweentwopossiblesolutions: 1) to personallyhold the assets in theirownname : in such case the taxpayer shouldfill in all the requiredtax-declarationforms (the so called Quadro RW), make the neededtaxcalculation and proceed with itspayment. (see : Agenzia Entrate newslater n. 38/E del 23 dicembre 2013) 2) To hold the assets under a fiduciary mandate: in such case the fiduciarywillactas a withholding agent in accordance with the fiduciarycontract and the Italian law.

  5. LeavingAssetsabroad with a Fiduciary In the eventthat the taxpayer(s) decide to leavetheirfinancial and/or real estate assetsabroadthrough a fiduciary company, theycouldopt for: 1) keeping the activities (assets) in the name of the Fiduciarythussigning a classicfiduciary mandate. 2)notassigningtheirassetsespeciallypropertyones (realestate,sharesetc) to the Fiduciary Company thussigning a ‘light’ fiduciary mandate in which the Fiduciaryactsonlyas a withholding agent.

  6. Signing a classicfiduciary mandate-Part 1 The start of the Fiduciary mandate will be structured in: - Meeting, in Italy or abroad, with the potential client (or their banking/law representativeItalian or foreign). Collecting data and information in compliance with the Anti-moneylaundering Law. With relation to VoluntaryDisclosure the Fiduciary Company willobtainevenproof of the writtenagreement the client hassigned or is in the process of signing with the fiscal authorities. - Verifying the client’s data with the Anti-moneylaundering Office

  7. Signing a classicfiduciary mandate-Part 2 - Meeting the client at the Fiduciary Company offices or anotheragreeduponplace. - Opening a bankaccount in the name of the Fiduciary (in Italy or abroad). The Fiduciarywillcommunicate the client’sname in case required by the Anti-Money laundering Law. - Transferingfinancialinstruments/currentassets from the client’sbank account/bankdeposit to the Fiduciary’sbank account/bankdeposit.

  8. Signing a classicfiduciary mandate-Part 3 The Fiduciaryhas to carry out variouslegalrequirementssuchas data registering in AUI (Centralized Computer Archive), provide information for Fiscal Information Database, fullfil the requirementsrelated to FATCA, carry out activitiesas a withholding agent aswellascalculate and deposit the stamp duty (so called imposta bollo). In order to enable the Fiduciary to fullfilall the legalrequirementsespeciallythoserelated to itsroleas a withholding agent, the Fiduciary Company must receive a complete and up-to-date data flow according to a beforehandagreed procedure.

  9. Signing a light fiduciary mandate-Part 1 Light Fiduciary mandate meanswithoutassigning the assets in the name of the Fiduciary i.e. mere administering (in Italian - incarico senza intestazione fiduciaria). The process of signing the abovementioned mandate issubstantially the sameas the classicalone. However the taxpayerneeds to open a bank account/bankdeposit in theirownname with a foreignbank.

  10. Signing a light fiduciary mandate-Part 2 Signingsuch a mandate allows the client to: - Assign the Fiduciary Company to actas a withholding agent without the need to put the bank account/bankdeposit in the Fiduciary’sname. Thissimplifies the Clients practicality, who can directlygiveinstructions to the bank to purchaseand/or sell securitieswithoutneeding to givepriorinstructions to the Fiduciary Company. - Assign the Fiduciary Company to actas a withholding agent evenabout non financialassetssuchasreal estate, works of art, shares, etc. Even in this case, in order to guarantee the punctual and promptfulfillment of the legalrequirementsespeciallythoserelated to itsroleas a withholding agent, the Fiduciary Company must receive a complete and up-to-date data flow according to a beforehandagreed procedure.

  11. Remember: 1) The client’sassetswill be separate from the assets of the Fiduciary Company. 2) The Fiduciary Company maintainsonlyproof of entitlement and ‘legitimatio ad causam’ over the clients’sassets; the Fiduciarydoesnothaverealownership. 3) The Fiduciary Company willactexclusivelypriorclient’sinstructions. 4) The fiduciary mandate isrevocable. 5) The Fiduciarycannot operate in the abstance of funds made available by the client. 6) The Fiduciary Company isnot a bank/asset manager; thereis no competition with banks/intermediaries . 7) The Fiduciaryis to be considered a toolwhichenables the taxpayers to Legallymaintaintheirassetsabroad. 8) The ItalianFiduciary Company needs to be authorized and admitted in the Ministry of Economic Development Register. 9) The ItalianFiduciary Companies are monitored by the Bank of Italy and Ministry of Economic Development. 10) In compliance with the Anti-moneyLoundering law the Fiduciary Company cannotreceivepayment in cash higherthan 999,99 Euro.

  12. Contactdetails: Unione Fiduciaria Milan: 02-724221 Rome: 06-4203381 vd@unionefiduciaria.it Lorenzo Sacchi , Deputy General Director – Fiduciary Area Director lsacchi@unionefiduciaria.it Giovanna Elmi , Fiduciary Area DeputyDirector gelmi@unionefiduciaria.it Marco Finocchi Financial Director, Rome Office mfinn@unionefiduciaria.it Fabrizio Vedana- Deputy General Director fvedana@unionefiduciaria.it

  13. VOLUNTARY DISCLOSURE: LAST CHANCE!

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