La residenza delle società dotate di personalità giuridica ai fini delle imposte dirette in base al diritto tributario interno e alle convenzioni per evitare le doppie imposizioni sottoscritte dall'Italia

The paper analyzes the notion of residence provided for by Italian domestic law, doctrine and jurisprudence. It also analyses the issue of the interaction of the residence concept with that of “management and coordination” which is a typical feature of multinational group of enterprises. More precisely, an analysis has been conducted in order to ascertain if and in what measure the “management and coordination” feature may have an impact on the issue of residence as interpreted in Italy. The analysis also concern the notion of residence in the context of the OECD Model to conclude that this notion mainly rests on the requirement of the liability to tax. Particular emphasis has been given to the ascertainment of the true meaning of the concept of place of effective management reported in Art. 4(3). In this respect, an in-dept historical analysis has been conducted with respect to the relevant League of Nations’ and OEEC’s (subsequently become OECD) documents. The (ab)use of double resident companies in triangular situation is deeply analyzed with respect to principles set out in the jurisprudence of some important States as well as on those ultimately expressed by the OECD in the 2008 Model Commentary and the OECD position has been criticised. Moreover, with particular reference to Italy, an extensive analysis has been carried out with respect to the double tax treaties entered into by it that somehow deviate from the OECD Model Convention with respect to the residence of companies especially in cases of dual resident companies. Finally, in relation to some features of the Italian income tax law, the access to double tax treaties has been verified with particular reference to entities which have opted for the tax consolidation (consolidato fiscale) or for the tax transparency (trasparenza fiscale) regimes.