How to make real estate properties payable to the trust company: all the advantages
The trust company is a company that administers the assets on behalf of a third party by virtue of a mandate contract without representation in order to act on behalf of the trustee or principal without using his name. This type of company is governed by law 23/11/1939 n. 1966 and by the Ministerial Decree of 16 January 1995.
Obligations of the fiduciary relationship
The grantor is free to revoke the mandate of the company at any time;
The trustee has the obligation not to operate directly in the name of the trust company so that it allows the trust company to withdraw from the mandate contract at any time.
The grantor must provide and guarantee the necessary and useful means so that the assignment can be carried out.
The trust company is forbidden to assign the contract.
The remuneration, conditions, and criteria must be determined in order to determine its amount.
The grantor has the obligation to establish his directives in writing in order to exercise his rights, as well as being obliged to draw up the report.
Applies to the trust company for fictitious interposition
Mr. Rossi, a medical doctor, called a trustee, has an exorbitant patrimony made up of real estate, one day he decides to turn to a trust company to administer his real estate, consisting of health care facilities, private clinics, as well as specialized medical studies.
Some of these lease them and from which they receive normal periodic fees, in others they carry out their activity as a doctor.
Since in the future he fears to have to answer for possible professional damages, he puts in place all the operations foreseen by the current legislation, in order to protect his assets and to guarantee to him owner to remain anonymous and secret, therefore he decides to agree with a person of trust so that his assets are formally registered which in reality belong to him.
Therefore it operates a sort of fictitious interposition, in which the trust company invested by this power by Mr. Rossi, takes over in all the kinds of civil, fiscal and tax relations due to the legitimate owner.
The constraint of confidentiality and the principle of secrecy
The trust company imposes a kind of confidentiality constraint on the identity of the owner. However, this is a protection that does not ensure interference by third parties who want to claim some rights on the assets, it is the case of dissatisfied creditors who want to assert their claims claiming back on the good of the owner, but it is not possible to attack something of which the existence is not known.
The fiduciary company undertakes to administer the assets on the basis of an agreement with the trustee who transfers ownership of the real estate, furniture, inheritance, shareholdings in the company.
Furthermore, there is a clear separation between the assets of the trust company and the assets managed in the name and on behalf of the grantor, so that the assets will be subject only to the claims and claims of the trust or not even of the creditors of the trust company.
Creditors of the trustee will have great difficulty in identifying the assets of the borrower who is the debtor managed by the trust company, thanks to the principle of fiduciary secrecy.
Since there is no specific regulation, doctrine and jurisprudence identify the relationship between the two parties in a fiduciary pact by virtue of which the grantor transfers a right to the trust company, and subsequently, the trust company assumes the obligation towards the trustee to transfer the right back to him.
Therefore from the fiduciary pact is born both a right to administer the immovable property in the name and on behalf of the fiduciante is an obligation to retransfer the assets to the same fiduciary.
If the fiduciary company does not fulfill its obligations under the fiduciary agreement the fiduciant can act and demand compensation for damages, or it can claim its own good so that the same returns in its full availability with repercussions to the detriment of the third buyer.
The law 23/11/1939 n. 1966
The law 23/11/1939 n. 1966 to the art. 1 states that “They are fiduciary and auditing companies and are subject to this law those which, however denominated, are proposed in the form of an undertaking, to assume the administration of assets on behalf of third parties , the organization and audit of companies and the representation of the holders of shares and bonds “and according to art. 6 also these are the trust companies whose purpose is the trust management of assets contributed by third parties, paying management profits; furthermore, there are also trust companies that can be identified as the SIMs according to the TUF (Legislative Decree No. 58/1998) that deal with the placement of investment portfolios by means of fiduciary registration.
The Trust Company regulated by the art. 1 above does not have the power to freely dispose of the asset or the right entrusted to it by the trustee, otherwise, instead the art. 6 of the aforementioned law, provides that the trust company that deals with the management of assets and rights, acquires full availability and can freely dispose of them, in fact it can also decide to sell them to third parties and with the profit earned can decide to make new purchases in the interests of the transferor, a prerogative excluded by the trust company governed by art. 1.
Trust transfer of real estate
When the trustee requests the intervention of a trustee company, the trustee title of the immovable property deprives the trustee of his real estate, the ownership of the same is formally attributed to the trustee company;
The land income produced by the property is taxed.
If the trust company carries out transactions from which capital gains arising on the property, these are subject to taxation;
When the fiduciary agreement ends the trustee enters into the ownership and possession of his own assets and rights.
The fiduciary contract, as an act having as its object the performance of assets, must be subject to registration with a rate of 3% applied to the commission received by the Trust Company;
Since the ownership of the asset remains in the hands of the actual owner, the land income is taxed in the hands of the grantor, who is also required to present the declaration.
In your tax return, the grantor may insert the income tax in the appropriate framework without mentioning the reference, which will be highlighted during any verification, in order to protect the principle of confidentiality underlying the fiduciary contract;
The trust company will be required to pay the IMU starting from the date of the heading ;
Any capital gains made will be charged to the actual owner-trustor as the real recipient of the source of income to be shown in the declaration;
the trust company will not be required to comply with any tax declaration regarding the proceeds from the trust property.
Tax transparency regime
The grantors may decide to use the transparency regime pursuant to articles 115 and 116 of the Presidential Decree no. 917/86, on condition that they have the percentages of votes and profits envisaged by the law, and that, independently of the number of natural persons that the same trust company represents, there is no obligation to withhold tax on dividends.
The trust company will communicate to the investee the willingness of the trustees to want to make use of the transparency regime and that they have the requirements provided for by the law.
The investee must transmit to the trust company the attestation of the income shares that are attributable to the shareholders, the trust company, in turn, must communicate to the shareholders the share of income attributable to each one.
Fiduciary companies must fill in part SK of the declaration of the withholding agent ( form 770 ) concerning the shareholders’ income shares, providing the tax authorities with data relating to the actual holders of the income deriving from shareholdings registered therein.
With regard to the sale of securities, securities and other financial instruments carried out by the trust company, they are exempt from VAT pursuant to article 10, n. 4 of Presidential Decree no. 633/1972.
In fact, they fall within the ordinary performance of the mandate conferred by the fiduciary relationship, therefore they are operations instrumental to the administration of the assets since for each individual transfer operation the trust company receives a precise assignment from the trustee.
Civil law profiles and separation of ownership
On the civil law side, with regard to trust companies, the legislator makes a clear separation between ownership and heading.
In particular, art. 1, last paragraph, of RD n. 239/1942, establishes that: “the fiduciary companies that have registered in their name shares belonging to third parties are required to declare the details of the actual owners of the securities themselves”.
Furthermore, the financial administration has the right to request the identification data of the actual shareholders from the trust company under the terms set forth in art. 32, first paragraph, no. 7, of Presidential Decree no. 600/1973.
Thus the principle of confidentiality and secrecy enshrined in the fiduciary pact and inherent in the nature of the same ceases.
In conclusion, it seems only right to mention some cases in which fiduciary secrecy is not applicable.
Legislative Decree 143/2001 provides that, with respect to anti-money laundering legislation, trust companies are obliged to report the names of the trustees and any suspicious transactions; Legislative Decree 58/1998 Articles 17 and 115 of the TUF provided for the powers of inspection by CONSOB to the Bank of Italy; moreover the articles 61 and 80 establish the obligation for the trust companies of specific duties of information to the CONSOB; the Presidential Decree 600/1973 and the DPR 633/72 regarding the tax assessment attribute to the Financial Administration specific powers of inspection on the activities held by the trust companies and on the names of the related trustees.
These and many other cases we will evaluate together to advise you on what to do if you want to entrust your assets to trust companies and want to take advantage of the principle of secrecy and confidentiality.
In addition, with the fiduciary title, the grantor transfers the title of the building to the trust company, but the property remains the property of the grantor.
The trust company has formal ownership, while the trustee maintains substantial membership.
If the creditor’s creditors are able to prove that he is the real owner even if the asset is formally registered in the trust company, the asset may be subject to forced execution or attachment by creditors.