Italian banking and financial law

Palgrave Macmillan Studies in Banking and Financial Institutions Series Editor: Professor Philip Molyneux The Palgrave Macmillan Studies in Banking and Financial Institutions are international in orientation and include studies of banking within particular countries or regions, and studies of particular themes such as Corporate Banking, Risk Management, Mergers and Acquisition The books’ focus is on research and practice, and they include up-to-date and innovative studies on contemporary topics in banking that will have global impact and influence Titles include: Domenico Siclari (editorr) ITALIAN BANKING AND FINANCIAL LAW I, Supervisory Authorities and Supervision II, Intermediaries and Markets III, Regulating Activities IV, Crisis Management Procedures, Sanctions, Alternative Dispute Resolution Systems and Tax Rules Elisa Menicucci FAIR VALUE ACCOUNTING Key Issues Arising from the Financial Crisis Anna Omarini RETAIL BANKING Business Transformation and Competitive Strategies for the Future Yomi Makanjuola BANKING REFORM IN NIGERIA FOLLOWING THE 2009 FINANCIAL CRISIS Ted Lindblom, Stefan Sjogren and Magnus Willeson (editors) GOVERNANCE, REGULATION AND BANK STABILITY Financial Systems, Markets and Institutional Changes Gianluca Mattarocci ANOMALIES IN THE EUROPEAN REITS MARKET Evidence from Calendar Effects Joseph Falzon (editorr) BANK PERFORMANCE, RISK AND SECURITIZATION Bank Stability, Sovreign Debt and Derivatives Josanco Floreani and Maurizio Polato THE ECONOMICS OF THE GLOBAL STOCK EXCHANGE INDUSTRY Rym Ayadi and Sami Mouley MONETARY POLICIES, BANKING SYSTEMS, REGULATION AND GROWTH IN THE SOUTHERN MEDITERRANEAN Gabriel Tortella, Ruiz García and Luis José SPANISH MONEY AND BANKING A History Caner Bakir BANK BEHAVIOR AND RESILIENCE Jill M Hendrickson FINANCIAL CRISIS The United States in the Early Twenty-First Century Dimitris N Chorafas HOUSEHOLD FINANCE Adrift in a Sea of Red Ink Mario Anolli, Elena Beccalli and Tommaso Giordani (editors) RETAIL CREDIT RISK MANAGEMENT Juan Fernández de Guevara Radoselovics and José Pastor Monsálvez (editors) MODERN BANK BEHAVIOUR Otto Hieronymi and Constantine Stephanou (editors) INTERNATIONAL DEBT Economic, Financial, Monetary, Political and Regulatory Aspects Palgrave Macmillan Studies in Banking and Financial Institutions Series Standing Order ISBN: 978–1–403–94872–4 (outside North America only) y You can receive future titles in this series as they are published by placing a standing order Please contact your bookseller or, in case of difficulty, write to us at the address below with your name and address, the title of the series and the ISBN quoted above Customer Services Department, Macmillan Distribution Ltd, Houndmills, Basingstoke, Hampshire RG21 6XS, England Italian Banking and Financial Law Vol IV, Crisis Management Procedures, Sanctions, Alternative Dispute Resolution Systems and Tax Rules Edited by Domenico Siclari University of Rome “La Sapienza”, Rome, Italy Selection, introduction and editorial content © Domenico Siclari 2015 Chapters © Contributors 2015 Softcover reprint of the hardcover 1st edition 2015 978-1-137-50761-7 All rights reserved No reproduction, copy or transmission of this publication may be made without written permission No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6–10 Kirby Street, London EC1N 8TS Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988 First published 2015 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS Palgrave Macmillan in the US is a division of St Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010 Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries ISBN 978-1-349-70128-5 ISBN 978-1-137-50762-4 (eBook) DOI 10.1007/978-1-137-50762-4 This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin A catalogue record for this book is available from the British Library A catalog record for this book is available from the Library of Congress To my wife, Annalisa, and to our son, Pietro Maria This page intentionally left blank Contents Acknowledgements viii Notes on Contributors ix Introduction Domenico Siclari Italian Crisis Management Procedures in the Banking Sector Valeria Leggio Crises of Subjects Operating in Italian Financial and Insurance Sectors Valeria Leggio 61 Deposit Insurance in Italy: From Italian Banking Law to EU Reforms Francesca Pluchino 84 The Peculiar Administrative Sanctioning System for the Italian Financial Markets Elisabetta Bani 103 Alternative Dispute Resolution Systems in Italian Banking and Finance: Evolution and Goals Mirella Pellegrini 131 Non-executive Independent Directors in Corporate Governance of the Italian Banks and Listed Companies Domenico Siclari 155 Credit Rating Agencies Angela Troisi 184 Tax Regulation on the Banking System Massimiliano Lorenzetti 195 Index 227 vii Acknowledgements I thank Professor Silvia Fedeli, Director of the Department of Economics and Law at the University of Rome “La Sapienza”, for pointing me in the direction of Philip Molyneux, the series editor Also, the book would not have seen the light of day without the encouragement, both practical and moral, of Professor Francesco Capriglione, and without the support of the contributors; to all of them, I express my sincere gratitude I thank Aimee Dibbens and Grace Jackson at Palgrave Macmillan for their prompt responses and continual support A big thank you, finally, to my wife, Annalisa, and son, Pietro Maria With great generosity they encouraged me to undertake this work and they supported my writing and the long and often arduous editing tasks, in the process sacrificing much of our family time in the evenings and at night viii Notes on Contributors Elisabetta Bani is Associate Professor of Economic Law in the Faculty of Law at the University of Pisa She holds a PhD from the Santa Anna School of Higher Education She is Deputy Director of the PhD Program on Law at the University of Pisa and Vice-Chairperson of the curriculum in Science of Public Administration She is a member of the Scientific Committee of Rivista Trimestrale di Diritto dell’Economia Administrative sanctions has been a continuing field of interest ever since she wrote a book on the topic in 2000 Another of her interests is the banking supervision, and after studying the Volcker Rule in the Dodd-Frank Act, she wrote a book in 2012 on banking regulation after the Great Recession Valeria Leggio is Research Fellow in Economic and Financial Markets Law at the University of Rome “La Sapienza”, and is a specialist lawyer in Administrative and Public Law, having been admitted to the bar in 2005 She graduated in Law from the University of Rome “La Sapienza” in 2001, obtained a second level Master’s in European Law and was a visiting researcher in Law and Economics at the Robert Gordon University School of Law, Aberdeen She specialized in EU Law at the London King’s College and at the Pierre-MendèsFrance University, Grenoble She also worked as a legal assistant at the European Parliament until 2008 In 2014 she joined the Bank of Italy and was assigned to the Public Procurement Department Her research interests include European economic law and regulation, administrative law in the banking and financial market sector, public procurement law Massimiliano Lorenzetti works in the Public Affairs Department of UniCredit SpA, where he is responsible for the Team Institutional Relations in Italy and Germany He graduated in Law from the University of Rome Tor Vergata in 1997 In 2000, he passed the bar examination to get the licence to practice law at the Court of Appeal of Rome From 2000 to 2007, he worked at the Agenzia delle Entrate and at the legislative office of the Ministry of Economics From 2002 to 2004, he was a Lecturer in Fiscal Law at the University ix 214 Massimiliano Lorenzetti China (“BETA”) concerning derivatives, in this case, the FTT would be taxed twice in Italy: The first time, according to the principle of residence, the FTT would be due in Italy as one of the parts of the financial transaction was “ALFA”, which had residence in Italy; A second time, according to the counterparty principle of Art 4, letter f, the FTT would be due in Italy because the “BETA” was deemed to be established in Italy as it was part of a financial transaction with another financial institution established in Italy 9.6.2 The Italian FTT The Italian law of stability for 2013 (Art 1, paras 491–500) introduced the Italian FTT model, which regards only some financial transactions: 1) transfers of shares which are issued by Italian entities; 2) transfers of equity financial instruments provided for in Art 2346, no of The Civil Code, which are issued by Italian entities; 3) only derivatives on transfers of shares and on transfers of financial instruments At first glance, the Italian FTT seems quite small compared to the indicated European model, resolving the matter in a new form of the old stamp duty on stock exchange limited to the shares (which joins the stamp duty payable on the holding of financial instruments) and with some differences (see below) The tax became effective in two stages: 1) the taxation on transfer of shares and high frequency operations on transfer of shares became effective on March 2013; 2) the taxation on derivatives and high frequency operations on derivatives became effective on July 2013 While the European FTT model provides two tax rates, 0.1 per cent of the transaction value or, if higher, of the market value for purchases and sales of financial instruments, and 0.01 per cent of the notional value for the derivatives, the Italian FTT provides: Tax Regulation on the Banking System 215 1) the 0.2 per cent tax rate on equity transactions on OTC markets (0.1 per cent for transaction on regulated markets), 2) fixed taxes for derivatives, according to the specific transaction The tax is payable regardless of the place of conclusion of the transaction and the state of residence of the parties Therefore, even transactions between non-resident subjects operating abroad are subject to taxation, provided that the transactions are related to financial instruments issued by entities which are residents of the Italian state (issuance principle) Similarly, not all the derivatives are taxed but only the derivatives on equity which are issued by Italian companies Transactions are subject to a further taxation on high frequency operations which are over an edge defined by a decree and not up to 60 per cent The edge is defined according to an algorithm that automatically determines the decisions relating to the posting, modification or cancellation of orders and their parameters when sending, editing or cancelling orders on financial instruments of the same species shall be made with an interval which is defined by a decree of the Minister of Economics The edge cannot be up to half second, no matter the outcome of the algorithm The interval is calculated as time between entering a purchase order or sale and the subsequent amendment or cancellation of the order, by the same algorithm The Italian FTT provides general exemptions regarding: 1) 2) 3) 4) Pension funds; Intragroup Operations; Operations which follow restructuring plans; Warrant transactions; Specific exemptions on equity transaction are provided for: 1) Issuing and annulment of shares; 2) Transaction of shares negotiated in regulated markets and issued by a company with capitalization under the edge of € 500 million; 3) Buy-sell back and sell-buy back operations like Repo (repurchase agreement); 216 Massimiliano Lorenzetti 4) Gifts and inheritances; 5) Investments in partnerships or membership-based organizations; 6) Shares of mutual funds, including shares of SICAVS and shares of Exchange Traded Fund (ETF); 7) Transfer of shares issued by a limited company; Specific exemptions on derivatives are provided for: 1) Derivatives on government bonds (issued by EU Members); 2) All the derivatives different from the ones on equity The taxable person is the buyer or the one who acquires the shares or other instruments participation rights (buyer) The financial transaction cannot be deducted from the IRES nor IRPEF tax base The collection and payment of the tax is made by the following intermediaries: banks; trust companies; investment firms involved in the execution of the operations subject to tax; notaries that draft the acts relating to the above indicated operations Non-resident intermediaries can collect the tax through a permanent establishment or a tax representative that is liable for tax collection If the intermediaries have not any permanent establishment nor tax representatives, the tax must be paid by the taxable person Even though the Italian FTT is apparently similar to the stamp duty, there are some significant differences: 1) the stamp duty applied to each specific purchase of shares, while the FTT applies on the net balance of the daily purchase of shares Whenever there is a negative net balance the tax cannot be applied; 2) in the FTT the buyer may use different brokers for purchase/sale of shares, so that some purchases of shares may be subject to tax, while other purchases of shares may be excluded as a result of daily net balance; Tax Regulation on the Banking System 217 3) the FTT is not directly linked to the purchase of shares since the tax calculation is based on the net daily balance and nullifies the purchases and sales carried out on the same day Differently from Italian FTT and European FTT, the French one is declined in three categories of operations: purchases of shares (“taxe sur les acquisitions des actions” (TAAF)); high frequency trading (“taxes haute fréquence” (TTHF)); purchases “naked” credit default swaps ( “taxe sur achat de” (TCDS)) on the debt of EU MS The TAAF adopted in France has significant differences from the Italian and European ones since its scope is much narrower than that of the Italian one and even more from the European one, which should be applied to all types of financial products, including the so-called derivatives 9.7 Banks as supporters in the tax verification Banks also collaborate with Government and Inland Revenue, providing them with information about the financial affairs of entities of interest in order to identify the nature of the operations and their volume regarding the financial accounts 9.7.1 Financial investigations Financial investigation is an activity where the collaboration between the government, the Inland Revenue and banks is particularly close Such activity aims of discovering if the taxpayers have not complied with the tax law in a positive effort to pay less taxes or not report revenues or costs Bank involvement is possible because the Italian framework has not a rule that provides for bank secrecy Law No 413 of 30 December 1991 had already authorized the Inland Revenue to consult the reports and deposit accounts on request and had obliged banks, to detect and retrieve the personal data of customers, including the tax code A “Register of Accounts” was also established in order to allow the Inland Revenue to get data of account and deposits of the clients Such register started only in 2005, when Law No 311 of 30 218 Massimiliano Lorenzetti December 2004, (Finance Act 2005) introduced important innovations, such as: i) the extension of the duties to all financial intermediaries, investment firms, undertakings for collective investment of savings, asset management companies and trust companies; ii) the possibility to ask not only account data, but also any operation or service provided to customers; iii) the reduction of the deadline for reply to 30 days, unless a further extension of 20 days is granted; iv) the electronic submission of requests; v) the extension of the identification duties to any financial operation carried out Art 37, para 5, of Decree No 223 of July 2006, converted by Law No 248 of August 2006 established the “Register of banking relationships” Such register must include both: 1) the names of the entities or individuals which have correspondent banking relationships and can use the accounts; 2) the names of the entities or individuals who have carried out any financial transaction outside of a continuous relationship Currently, the frame provides: 1) A one top-level tool, which is provided by the register of banking relationships that allows the Inland Revenue to locate through which banks and financial operators the entity operates; 2) A second-level instrument that consists in the telematic process and aims to deepen the investigation in respect of the entities whose data have been collected as a result of access to the registry Therefore, banks and all financial intermediaries are obliged to report to the tax authorities on a monthly basis: the existence of ongoing relationships and financial transactions carried out outside of these, in their name or for or on behalf of Tax Regulation on the Banking System 219 third parties, together with the identification data, including the tax code, the subjects that carry it out The existence of these operations is notified only once, for each calendar year, on the occasion of the first operation performed; identification data of the taxpayer, who has any other kind of relationship with financial operators in its own name or on behalf of third parties; data about the nature of the relationship, the date of opening, changing and closing The violation of these obligations is punished, in accordance with the provisions of paragraph 1-bis 10 of Legislative Decree No 471/1997, with sanction from € 2.065 to € 20.658, reduced by half if the delay in performance shall not exceed 15 days Financial investigators entitled to access the register are: 1) Inland Revenue officers; 2) Tax police officers; 3) Customs Agency officers, limited to the investigation on violations relating to intra-Community VAT; 4) Gambling Agency to contrast illegal gambling; 5) Collector agents for collecting payments over € 25,000 in total (Equitalia) Other individuals that can gain access are officers of public entities who have concluded special agreements with financial administration such as the Ministry of Justice, the Anti-Mafia Investigative Directorate (DIA), police forces in the role of judicial police, the Financial Intelligence Unit of the Bank of Italy (FIU), Watchdog For the purposes of financial investigations, the administrative authority needs to issue a fully motivated authorization which contains: ● ● ● the identification of the subject in relation to which the financial investigation is needed; the timetable of the investigation; the reasons why the financial investigation is needed in order to reconstruct the taxpayer’s fiscal position 220 Massimiliano Lorenzetti The survey is aimed to verify that the active movements (withdrawals) or passive (credits) of the entity are consistent with its capacity to pay For this purpose, the Inland Revenue can qualify: 1) unjustified withdrawals as “black” purchases; 2) unjustified credits as royalties (or compensation), un-invoiced, taxable supplies unaccounted for; At the same time, payments that were not considered for the purposes of determining taxable income or whose fiscal irrelevance was motivated by the taxpayer, can be used as presumptions of positive components of income and in this context used to rectify any income category Another recent survey tool introduced, from implementing the register of relationships is the “List of Taxpayers” The formation of such list is made on the basis of data provided by financial operators, annually, on handling the relations entertained by its customers The report contains: 1) the amount of the opening balance of the relationship, 2) total handling incoming and outgoing, 3) the final balance 9.7.2 New duties: the Foreign Account Tax Compliance Act (FATCA) The FATCA is a US law designed to prevent tax evasion by US citizens using offshore banking facilities FATCA imposes a 30 per cent withholding tax on payments of US source income made to non-US financial institutions unless they enter into an agreement with the US Internal Revenue Service (IRS) and disclose information about their US account holders Such system will require information to be provided in respect of certain accounts in existence on or after 30 June 2014 The agreement between Italy and the US was signed on 10 of January and the FATCA regulations will come into effect on July 2014, a term which will be completed in the legislative process that provides for the ratification of the agreement by parliament and the subsequent adoption of the final version of the ministerial decree Tax Regulation on the Banking System 221 By July 2014, Italy must activate procedures for customer identification at the opening of each new relationship and the management of any sanction in the form of withholding tax In addition, operators should register with the American authorities between May and 30 November 2014 and prepare to send the first annual reporting to the Revenue Agency by 30 April 2015 regarding relationships held by US individuals in 2014 The analysis and classification of active relationships prior to July 2014 will instead be completed by 30 June 2015 in the case of counter-values exceeding one million dollars (High Value Accounts) and by 30 June 2016 in the remaining cases In the coming months, FATCA is expected to serve as a platform for the automatic exchange of information between tax authorities on a multilateral basis, in accordance with the rules being prepared in the OECD and the EU The Ministry of Economics also published, at the end of April 2014, the draft of the ministerial decree for the implementation of FATCA The government approved a draft law for the ratification of the above named agreement The application of FATCA in Italy has a significant impact on a broad category of financial market participants, which will be called to identify US clients and communicate the relevant information to the Revenue Agency Financial institutions that will be called upon to fulfil the obligations of FATCA are the following: Banks Other entities21 These entities may be exempted from certain obligations if they meet the requirements laid down by the agreement signed with the United States or by US FATCA Regulations 9.8 9.8.1 Other tax rules on banking products Annual flat flee on bank accounts Bank accounts are subject to an annual flat fee of € 34 for individuals and € 100 for businesses Financial assets (excluding bank accounts) are taxed at 0.2 per cent; the financial sector does not pay this tax Some luxury goods are subject to specific taxes 222 9.8.2 Massimiliano Lorenzetti Substitute taxation on loans Art 22 of law Decree No 91 of 24 June 2014 changes the Italian tax regime for medium-/long-term banking loans, as provided for by Presidential Decree No 601 of 19 September 1973 (Decree 601) The 0.25 per cent substitute tax regime which is voluntarily payable on medium- to long-term loans pursuant to Art 15 of Decree 601 should be extended to cover transfers under syndications (including the transfer of guarantees) Furthermore, pursuant to Art 22, paras (3), (4), (5) and (6), Italian securitization vehicles (established pursuant to Law No 130 of 30 April 1999) and insurance companies may grant financing to companies and, under certain conditions, benefit from the substitute tax regime on medium-/long-term financing 9.9 Impact of tax regulation and recent developments Italian tax burden on banks is one of the highest in Europe.22 It depends on a regulation that is tougher than in other countries The main disadvantages are linked to the partial deductibility of the interest expenses, to the amount of the deferred tax assets, to the regulation on credits as well as to the lack of implementation of the VAT Group The partial deductibility of interest expenses is an issue Italian banks have to deal with since it caused a cost of 1.2 billion only in 2010.23 The percentage of in-deductibility of per cent is indiscriminately applied to all of the interest expenses that a bank incurred, without considering the nature of the interests and, in particular, the proportion between interest expenses and interest gains On the other hand, tax regulations in the main European countries (France, Germany, UK) have a different assumption since they are designed to charge the thin capitalization of companies To this effect, they limit the deduction of interest expenses only whereas they exceed interest gains.24 With regard to net impairment losses on loans, they are fully recognized in all the main European countries (UK, Germany, France and Spain) even if with different methods On the contrary, in Italy, as explained above, banks cannot fully deduct them in the year of accounting Law No 147 of 27 December 2013 improved the regime, reducing the years of deduction from 18 to years and extending the deduction to IRAP Tax Regulation on the Banking System 223 The former regime obliged banks to make a huge early payment of taxes, causing the arising of deferred tax assets (so-called DTA) The reduction of the years of deduction lightened the impact of the early payment, limited the arising of DTA and lowered the tax burden As a consequence, it attenuated the pro-cyclical effect of tax rule on net impairment losses on loans.25 A further reduction of the DTA was granted with Law No 147/2013, which extended the possibility to turn such assets in effective tax credit But this is still not sufficient to fully align the Italian tax regime to the ones of the other European countries, which need the fully recognition of the data in the balance sheet Other negative effect depend on “one shot” measures such as the increase of the advance income tax payment due for fiscal year 2013 and the introduction of the IRES surcharge of 8.5 per cent for banks which further increased the taxation far above the EU average.26 The difference between the regulations is able to affect the profitability of banks in Italy This is the reason why it is important to promote the same level playing field adopting the same tax regulation in all the European countries and removing tax barriers Notes Hearing of the Governor of Bank of Italy at the Chamber of Deputies on 17 March 2009; Intervention of the Governor of Bank of Italy at the Plenary of the Italian Banking Association of 15 July 2010 Patuelli: troppo fisco sulle banche in Il Sole 24 Ore del 19 giugno 2014 Ibid According to Art of Law Decree No 133 dated 30 November 2013 (converted into Law No of 29 January 2014), “Urgent provisions relating to the IMU, the alienation of public properties and the Bank of Italy” E Ruggiero and G Melis, “Pluralità di sistemi contabili, diritto commerciale e diritto tributario: l’esperienza italiana” in Rassegna tributaria, no 6, novembre–dicembre 2008, p 1624 G Zizzo, L’Ires e i principi contabili internazionali: dalla neutralità sostanziale alla neutralità procedurale in Rass trib., no 2, marzo–aprile 2008, p 316; M Piazza, D.M aprile 2009, no 48 – Determinazione del reddito d’impresa dei soggetti Ias in “il fisco” no 21 del 25 maggio 2009, pp 2–3467 M Piazza and A Scagliarini, Circolare Assonime no 39 del 23 settembre 2008 – Regime dei riallineamenti delle imprese r Ias adopterr in “il fisco” no 36 del ottobre 2009, pp 2–6023 224 Massimiliano Lorenzetti E Fusa, La valutazione dei crediti secondo i Principi contabili internazionali: d incertezze fiscali in “il fisco” no 32, settembre caratteristiche operative ed 2008, pp 1–5774 R Dolce and R Parisotto, Manovra d’estate (D.L 25 giugno 2008, no 112, convertito): novità perr banche e assicurazioni in “il fisco” no 33 dell’8 settembre 2008, pp 1–5917; M Piazza, Banche, fisco sopra al 40% – Penalizzate le compensazioni degli interessi passivi infragruppo – LA CONFERMA – Non devono essere neutralizzate le variazioni in diminuzione relative a svalutazioni crediti ante periodo d’imposta 2013 in Il Sole 24 Ore del giugno 2014 10 P P Pisoni, F Bava and D Busso, TFR e passaggio agli IAS//IFRS L’Agenzia delle Entrate dichiara l’irrilevanza fiscale in “il fisco” no del 15 gennaio 2007, pp 1–171 11 R Parisotto, Con gli Ias si complica il calcolo perr trattamento di fine rapporto e costi in più esercizi – La quantificazione del Tfr segue criteri attuariali in Il Sole 24 Ore del 18 giugno 2007 12 G.Benzoni, R Mottolese and D Di Michele, Trattamento di fine rapporto, in F.Acerbis/A.Catona, La tassazione delle banche – Guida alla fiscalità diretta, Gruppo 24 Ore, 2011, p 181 13 M Orlandi, Legge di stabilità 2014: la deducibilità dei canoni di leasingg su beni mobili e immobili per le imprese in “il fisco” no del febbraio 2014, p 413 14 G Gavelli, Iscrizione in bilancio delle partecipazioni societarie e regime Pex in “il fisco” no 25 del 18 giugno 2012, pp 1–3922 15 F Marrone, Limitazione degli effetti distorsivi della tassazione perr trasparenza, in “il fisco” no 46 del 16 dicembre 2013, pp 1–7101 16 R Dolce, Partecipazioni acquisite perr il recupero di crediti bancari (art 113 del Tuir) in “il fisco” no 46 del 12 dicembre 2011, pp 1–7446 17 F Dezzani and L Dezzani, Banca d’Italia: rivalutazione delle quote sociali detenute dai soci in “il fisco” no del marzo 2014, p 809 18 A Catona and A Scagliarini, L’Irap nelle banche, in F Acerbis and A Catona, La tassazione delle banche – Guida alla fiscalità diretta, Gruppo 24 Ore, 2011, p 181; R Lupi L’Irap tra giustificazioni costituzionali e problemi applicativi in “Rassegna tributaria” no novembre–dicembre 1997, p 1407 19 J Davis, B Smith, M Wagner and R O’Kelly, The impact of the eu-11 financial transaction tax on end-users in http://www.google.it/url?url=http://www afme.eu//WorkArea/DownloadAsset.aspx per cent3Fid per cent3D9930&rct=j& frm=1&q=&esrc=s&sa=U&ei=10wkVImUPIbW7QbtqIHICQ&ved=0CBoQFjAB &usg=AFQjCNGhXHjQFK83cNVnZetxkEpGQgCRRw 20 R Bocciarelli, Tobin tax, 400 milioni nel 2014 in Il Sole 24 Ore del marzo 2014 21 Central depository referred to in Art 80 of Legislative Decree 58/1998 (Monte Titoli SpA), the Italian Post Office Spa (only activity of Banco Posta), securities firms (SIMs), the asset management company (SGR), insurance companies that operate in the non-life undertakings for collective investment of savings (mutual investment funds), trust companies, Tax Regulation on the Banking System 22 23 24 25 26 225 pension institutions compulsory and supplementary pension institutions (Legislative Decree no 252/2005), electronic money institutions and payment (Art 114-bis and 114-sexies of the TUB), securitization vehicles, pursuant to Law No 130/1999, the trust (where the trustee is a financial institution and at least one of the trust and the trustee is a resident in Italy), the Italian permanent establishment of foreign financial institutions and credit card issuers G Ricotti, V Pinelli, G Santini, L Santuz, E Zangari and S Zotteri, La pressione fiscale gravante sul sistema bancario: questioni metodologiche ed d evidenze empiriche, in Questioni di Economia e Finanza (Occasional papers), 80, 2010 Ibid In Italy, thin capitalization is faced through an incentive to capitalize companies, the so-called Allowance for Corporate Equity (ACE), introduced by Legislative Decree 201/2011 Such incentive has the aim to reduce the difference in tax treatment between companies financed with debt (that usually can deduct financial expenses) and businesses financed with their own equity (that cannot deduct financial expenses) and to strengthen the capital structure of companies It provides for the deduction from total income of an amount equal to the notional return on the new capital The deduction was increased by Law 147/2013, passing from the current per cent to per cent in 2014, 4.5 per cent in 2015 and 4.75 per cent in 2016 A De Vincenzo and G Ricotti, L’utilizzo della fiscalità in chiave macroprudenziale: l’impatto di alcune recenti misure tributarie sulla prociclicità e sulla stabilità delle banche in Note di stabilità finanziaria e vigilanza, no April 2014 A Patuelli, Alle nostre r banche più tasse che aiuti Negli altri Paesi Ue, Germania inclusa, attenzioni statali più generose in Il Sole 24 Ore 26 April 2014 Index abuse of name, 121 Acting Commissioner, 69, 80 ad acta commissioner, 169 administrative fines, 110 administrative judge, 117, 129 administrative sanctions, 1, 2, 104, 106, 109–119, 120–127, 130 adversarial process, 108 afflictive character, 106 amount of the fine, 116 appeal, 104, 129, 136, 143, 144, 146, 147 Art 41 of the Italian Constitution, 32, 90 Art 47 of the Italian Constitution, 5, 32, 79, 159, 174 Association of Italian Bankers (ABI), 136, 1223 bad bank, 25, 26, 35 bail-in, 24–26, 42, 48, 51–53 bank-centred approach, 73 bankers’ compensation, 156 Banking Union, 27, 28, 32, 55, 56 Basel III, 46, 119 best practice, 149, 170 board loyalty, 2, 155, 158 bridge bank, 25, 42 casse rurali e artigiane, 84 Chief Risk Officer, 170 Civil Code, 16, 17, 36, 43, 66, 98, 113, 127, 161, 167, 168, 177, 178, 200, 201, 214 class action, 131, 152 closed bank resolution, 24 Code of Administrative Process (CAP), 117 commissioners, 7–13, 18–19, 35, 37, 38, 43, 44, 85 concordato di liquidazione, 16 confidi, 72, 82 conflicts of interest, 2, 155, 158, 160, 167, 168, 171, 188–191, 194 Constitutional Court, 117, 118, 127–129, 149, 153 Consumer Credit Directive, 71 contentious nature, 107 corporate governance, 2, 105, 155–158, 163, 164, 169–183, 187 Corporate Income Tax (IRES), 195 Court of Appeal, 15, 118, 129 criminal prosecution, 109 criminal sanction, 109, 114 de Larosière Jacques, 123, 156 de-juridicalization, 62 depositor confidence, 85 depositor protection, 86, 90, 96 deterrence, 109, 110 Directors and Officers (D&O) Insurance, 169 early intervention, 19, 22, 23, 32, 48, 50, 56, 62, 63, 67, 69 effectiveness, 2, 5, 27, 31, 103, 106, 107, 133, 135, 144, 157, 170, 176, 186, 191, 192 Electronic Money Directive, 71 emergency payout, 95 enforcement, 2, 9, 14, 31, 37, 40, 106, 107, 115, 122, 124, 180, 197 European Banking Authority (EBA), 22, 34, 48, 95, 121, 156, 171, 172 European Central Bank (ECB), 27, 28, 30, 33, 46, 47, 55, 57, 58, 60, 104, 129, 130 European Convention on Human Rights (ECHR), 108, 124, 128 external separation, 15 227 228 Index financial conglomerates, 68, 83 financial markets watchdogs, 106, 122 Financial Transaction Tax (FTT), 3, 211 Fondo centrale di garanzia, 84 Fondo di garanzia dei depositanti del credito cooperativo, 84 Fondo interbancario di tutela dei depositi (FITD), 84 Foreign Account Tax Compliance Act (FACTA), 220 governance arrangements, 156, 157 group insolvency, 18 home country control, 20, 31, 45, 64 illegal behaviours, 103 impartiality, 108, 128, 135, 139, 143, 168, 190 in bonis, 25, 87, 91 independence requirements, 2, 130, 155, 159, 160, 162, 178 independent authority, 103–105, 139 insolvency risks, 88, 90 insurance companies, 4, 61, 67, 69–74, 78, 79, 97, 196, 205, 222, 224 internal separation, 16 intervention plan, 70 judicial review, 3, 59, 155, 168, 180 jurisdiction, 29, 38, 45, 47, 104, 105, 116–118, 120, 129, 138, 140, 144, 145, 149, 159, 196, 202 jurisprudence, 108, 118 lawmakers, 103, 107, 121, 130 legal cumulability, 113 Liikanen Erkki, 157, 173 mandatory consortium, market abuse, 114 mediation, 26, 27, 135, 137140, 142–144, 152, 153, 159 minimum harmonization, 22, 93 moral hazard, 33, 35, 46–48, 52, 74, 89, 111, 141, 185 moral suasion, 108, 148 mutual banks, mutual recognition, 21, 31, 32, 67 national resolution authorities, 26, 27, 28, 54, 58, 59 negligent behavior, 113 obstruction of the supervisory function, 113, 114 offence, 40, 104, 107, 109, 110, 112, 113, 114, 116, 127 offensiveness, 122 open bank resolution, 24 opposition to the fines, 106 out-of-court, 104, 133–138, 144, 146 par condicio creditorum, 14 pari passu principle, 14 partial withdrawal, 70, 80 Payment Services Directive, 71, 135 payout, 55, 85, 86, 89–93, 95, 97, 98 personal liability, 8, 126 pre-crisis intervention, 10 pre-crisis stage, 90 preventive supervisory approach, 5, 19 principle of favor libertatis, 113 principle of favor rei, 112, 121 private justice, 132 proportional approach, 20 prudential regulation, 45, 50, 109 public bank, 25 public officials, 8, 13 reciprocal loans, 95 recovery plan, 22, 49, 87 Regional Business Tax (IRAP), 206 Regional Federation, 87 regulatory arbitrage, 189 Regulatory Technical Standards, 22 reimbursement, 1, 74, 86, 91, 94, 98 related parties, 3, 155, 165–169, 179 reorganization measures, 69 restoration plan, 68, 80 Index retroactivity, 113 Risk Appetite Framework, 170 rule of law, 106, 112 safety net, sectional system, 109, 125 self-governance, 89 self-regulation, 82, 104, 107, 134, 136, 163 separation of powers, 106 Single Resolution Board, 27 Single Resolution Fund, 22, 55–57 Single Resolution Mechanism, 1, 22, 27, 32, 34, 55 single rulebook, 55, 95 Single Supervisory Mechanism, 21, 27, 32, 46, 55, 129 società di gestione del risparmio (SGR), 61, 62, 164 229 società di intermediazione mobiliare (SIM), 61, 62 società di investimento a capitale variabile (SICAV), 61, 62 sovereignty, 28, 57 special management, 23 State intervention, 4, 6, 109 subjective element, 113 tax verification, 217 taxation on financial gains, 210 terrorism, 103, 128 Value Added Tax (IVA), 207–208 vendor due diligence, 169 verbalization, 108 willful, 103 written form, 95 ... works and researches are mainly concerned with financial regulation and banking law; she has published several articles on these issues 1 Introduction Domenico Siclari Italian Banking and Financial. .. topics include the regulation and supervision of financial intermediaries and markets, focused on ECB, banking and financial disputes and ESFS (European System of Financial Supervision) She is... regulation on the banking and financial sector, with a special focus on the impact of the financial crisis and the shadow banking system Domenico Siclari is Associate Professor of Economic and Financial