Tassazione delle partnerships internazionali: modelli domestici, disciplina convenzionale e diritto europeo

Current tax systems apply direct taxation to individuals and legal entities. In each State, however, a variety of intermediate figures, defined as non-corporate-entities, are equipped with different degrees of legal subjectivity. These include partnerships. With the aim of bringing back partnerships’ taxation within general domestic regime provided for individuals or legal entities, each State uses its own fiscal rules of partnerships characterization. As a result, each State may consider partnerships fiscally opaque or transparent. This applies to both domestic and foreign partnerships. When a domestic partnership business has some cross-border item, domestic tax characterization approaches often clash each other’s. Such inescapable conflicts provoke a high risk of international income double taxation or double non-taxation. Solutions to these problems are not systematically considered in Tax treaties, EU law or EU Treaties as interpreted by ECJ. They are entrusted to autonomous initiative of each State. This study examines direct taxation of international partnerships which have some connection to the Italian tax system. It also proposes a comparison with other tax systems, which are selected on the basis of certain criteria. The comparison aims to identify problems arising from the simultaneous application of Italian and foreign taxation, considering the frequently thin role of Tax Treaties. Where a Tax Treaty includes special clauses for partnerships, their effect is examined. If considered Countries are EU Member States, results of the analysis are examined in relation to European law, with a special focus on compatibility with the EU Treaty freedoms as interpreted by ECJ jurisprudence.