i GENERAL OVERVIEW
Italian fundraising figures have varied significantly in recent years. Commitments raised by independent fund managers amounted to €2.487 billion in 2015, dropped to €1.313 billion in 2016 and then increased to €6.239 billion in 2017.2 New commitments totalled €1.664 billion in the first half-year of 2018.3 Of the total 2017 commitments, private fund managers raised only €920 million,4 which increased to €1.289 billion in the first half-year of 2018. Of the 2017 commitments raised by private fund managers, 28 per cent was made by international investors, increasing to 50 per cent in the first half-year of 2018. Funds of funds, family offices and individual investors were the larger investors, accounting for an overall 44 per cent of the total commitments in 2017 (29 per cent in the first half-year of 2018). While banks' commitments are slowly increasing, Italian pension funds continue to allocate limited resources to private equity funds (14.4 per cent and about 5 per cent respectively of the total commitments in the first half-year of 2018). There were 21 firms engaged in raising funds in 2017 (18 in the first half-year of 2018).
Private equity and venture capital funds raising money in 2017 and 2018 included Charme III (in excess of €500 million at final closing in 2017), Gradiente II (€60 million at first closing in 2017), Arcadia Small Cap II (€47 million at first closing in 2017), UV2 (€75 million at first closing in 2017), Fondo Technology & Innovation (€30 million at first closing in 2017), QuattroR (€711 million at first closing in 2017), Fondo Italiano d'Investimento's FoF VC (€163 million at final closing in 2017), Innovazione e Sviluppo (€150 million at first closing in 2017), FII Tech Growth (€50 million at first closing in 2017), FSI Mid-Market Growth Equity Fund (€1.25 billion at third closing in 2018), F2I's third fund (infrastructure – €3.6 billion at final closing in 2018),5 Ambienta III (€635 million at final closing in 2018), Alto Capital IV (€210 million at final closing in 2018), Green Arrow Capital's Private Equity 3 (€230.6 million at final closing in 2018), Progressio Investimenti III (€127.7 million at second closing in 2018), Programma 102 (€65 million at first closing in 2018), Italia Venture II – Fondo Imprese Sud (€150 million at first closing in 2018), IGI Investimenti Sei (€100 million at first closing in 2018), Fondo Agroalimentare Italiano (€40 million at first closing in 2018) and B4 H II – Fondo EuVeca (€43 million at first closing in 2018).With some exceptions reflecting the current market tendency towards larger commitments concentrated on fewer managers, fundraising periods are generally becoming longer. While public data is not available (and sponsors' statements about the launch of a fund sometimes do not consider the start date to be the time when fundraising efforts actually commenced), it is not infrequent for a fund to take more than a year to achieve the first closing. Fund terms proposed to investors may include a right of the manager to extend the maximum delay between first and final closing beyond the customary 12 months (generally up to an additional six months) subject to investor consent.
Apart from the perception of the country's political instability limiting the appetite of large international investors for local funds, other structural factors influence the Italian fundraising landscape, which is not catching up with the significant increase in global fundraising numbers in recent years. Allocations to private equity by Italian pension funds continue to represent a very limited portion of their assets compared to pension funds in other Western countries. Also, pension funds are now more willing than in the past to diversify their PE commitments geographically, and this is reducing allocations to local funds.6 This situation is unlikely to change rapidly. While Italian managers receive limited support from domestic institutional investors, only some of them have the size, track record and ability to raise funds in the international markets. Another element to note is that sub-threshold managers under Directive 2011/61/EU on Alternative Investment Fund Managers (AIFMD) are subject to an authorisation requirement pursuant to Italian law. This is making the market for venture capital and other small funds less dynamic and diversified than it was in the pre-AIFMD scenario (when unregulated structures were also available).
Notwithstanding the above, the private equity industry appears to have significant potential for further growth, given the size and dynamism of the Italian economy, the large number of small and medium-sized enterprises (SMEs) that need to optimise their funding sources (still dominated by the banking system) and capture opportunities for export growth, and the new generations of fund managers progressively changing the face of the industry. Tax incentives have recently been introduced to foster direct and indirect long-term investment in local SMEs by pension funds.
ii LEGAL FRAMEWORK FOR FUNDRAISING
i Preferred jurisdictions and legal forms
Italian sponsors typically establish private equity funds as contractual structures governed by Italian law and managed by investment entities authorised and supervised by the Bank of Italy. Establishing funds under the law of another jurisdiction is infrequent for Italian sponsors. In some instances, funds were formed as English limited partnerships considering their particular investor base or the management team's ability to implement an investment strategy covering multiple jurisdictions.
The transposition of the AIFMD into law did not significantly alter the regulatory framework that was applicable to private equity and other alternative funds beforehand. Collective portfolio management was already a regulated activity requiring prior authorisation, and the conditions to meet for the release of the authorisation were substantially similar to those applying under the AIFMD. This framework applied to both open-end harmonised funds under EU directives (UCITS) and other funds, including private equity funds (alternative investment funds or AIFs). However, the definition of collective portfolio management was narrow before the implementation of the AIFMD as it only covered contractual funds and SICAVs, so non-UCITS funds could be established also as unregulated structures. Over time, this gave birth to a number of funds set up as corporate vehicles under ordinary company law.
Because the AIFMD applies to all AIF managers (AIFMs) irrespective of the legal nature of AIFs, this regulatory framework changed with the implementation of the AIFMD. AIFs may now be established in contractual or corporate form, both structures being regulated by law. Also, in implementing the AIFMD, Italy gold-plated its provisions regulating sub-threshold AIFMs7 by requiring all AIF managers to be authorised (with limited regulatory differences between full-scope and sub-threshold managers).
The regulatory regime applicable to all AIFs requires the appointment of a depositary carrying out safekeeping and other functions in accordance with the AIFMD. Only Italian banks and investment firms (or local branches of EU banks and investment firms) can be authorised by the Bank of Italy to carry out depositary functions. An important distinction between AIFs is based on their permitted investors. If the governing rules of an AIF limit them to certain qualifying investors,8 the AIF (a reserved AIF) is subject to a more flexible regulatory regime. In particular: (1) commitments to a reserved AIF may be drawn down on an as-needed basis; (2) its constitutive documents are not subject to the prior approval of the Bank of Italy; and (3) the Bank of Italy provisions on limitation and diversification of risk concerning the generality of AIFs do not apply. The governing documents of a reserved AIF must contain provisions setting out, among other things, its investment restrictions, the maximum level of leverage the AIF can employ and the types and sources of permitted leverage.
In this environment, private equity funds9 are almost invariably set up as closed-end reserved AIFs of a contractual nature. While corporate structures (SICAFs) are also available as alternative legal vehicles, these structures are now subject to comparable regulatory requirements to contractual funds. Because their constitutive documents are more complex than those of contractual funds, corporate vehicles definitely lost appeal compared to the pre-AIFMD (unregulated) scenario. Funds covered by Regulation (EU) No. 345/2013 on European venture capital funds, as amended10 (the EuVECA Regulation) can be established in Italy as closed-end reserved AIFs taking contractual or corporate form subject to the above considerations. The managers of EuVECA funds qualify as AIFMs. As such, they are subject to an authorisation requirement11 in the Italian regulatory system.
Main legal and regulatory provisions
The following are the principal Italian laws and regulations applicable to reserved AIFs and their managers:
- Legislative Decree No. 58 of 24 February 1998, as amended, is the main piece of legislation regulating financial markets and intermediaries;
- Ministry of Economy and Finance Decree No. 30 of 5 March 2015 regulating the structure of AIFs and other general criteria to be met by them;
- Regulation of the Bank of Italy dated 19 January 2015, as amended, regulating the management of AIFs (including provisions governing the authorisation process and requirements applicable to managers, subsequent ongoing regulatory requirements, supervision and prudential requirements);
- joint Regulation of the Bank of Italy and the Italian Securities and Exchange Commission (Consob) dated 29 October 2007, as amended, setting out the organisational requirements to be met by, among others, AIFMs;12
- Consob Regulation No. 20307 of 15 February 2018, setting out rules of conduct applicable to certain intermediaries, including AIFMs, with a view to protecting investor interests; and
- Consob Regulation No. 11971 of 14 May 1999, as amended, regulating issuers of securities and including provisions concerning the marketing of fund interests.
A contractual fund is a pool of assets and liabilities created pursuant to a board decision of an authorised manager and segregated by operation of law from all other assets and liabilities of the manager (including those of other funds managed by it), the depositary and the investors. Under the legal segregation rules, the fund's assets are protected against possible claims and legal actions filed by the creditors of the manager, other funds managed by it, the depositary and the investors. The fund's creditors may only enforce their claims against the assets of the fund (i.e., not against those of the individual investors, or those of the manager, which is not liable for the fund's debts to third parties).
The governing rules of a fund and the subscription agreements signed by the investors (in a form prepared by the manager) are the fund's constitutive documents. The governing rules are approved by the manager when establishing the fund and are accepted by investors by signing their subscription agreements. By accepting the governing rules of a fund, an investor enters into a contractual relationship with the manager that is governed by Italian law. The governing rules of a reserved AIF do not require prior approval from the Bank of Italy; however, the rules must be delivered to the Bank after the AIF is established (reserved AIFs are regulated structures subject to the supervisory powers of the Bank of Italy). Managers can issue side letters to individual investors but any preferential treatment an investor obtains under a side letter or its subscription agreement must comply with fairness and disclosure principles provided for by the AIFMD. Also, side letters and subscription agreements may not contain terms conflicting with those of the fund's governing rules.
Contractual funds can be established and managed by Italian authorised managers (SGRs) or other full-scope EU AIFMs acting under AIFMD passport provisions.
SGRs are Italian companies authorised by the Bank of Italy to provide collective portfolio management services. An SGR qualifies as a sub-threshold manager if the volume of its total assets under management is below certain thresholds established by the AIFMD13 and it has not opted into the full scope of the AIFMD. Sub-threshold SGRs benefit from more relaxed regulatory requirements than full-scope SGRs concerning own funds, remuneration policy, control functions, valuation of assets, outsourcing of manager functions to third parties and some other matters. Unlike full-scope SGRs, sub-threshold managers cannot rely on the AIFMD passport provisions. A company wishing to obtain authorisation as an SGR to manage private equity funds must satisfy a number of conditions, including the following: (1) company limited by shares (legal form); (2) registered office and headquarters in Italy; (3) initial share capital of €500,000 (for full-scope SGRs) or €50,000 (for sub-threshold SGRs); (4) directors, general managers and statutory auditors meeting certain moral, independence, experience, skills, fairness and other requirements; (5) owners of qualifying holdings meeting certain moral, skills and fairness requirements; and (6) group structure not preventing a sound and prudent management and the effective exercise of supervisory functions by the Bank of Italy and Consob. If all applicable legal and regulatory requirements are complied with and the conditions for a sound and prudent management are met, the Bank of Italy will release the authorisation. An authorisation process may take five months or more to complete. Documents to be enclosed with the application include a description of the internal organisation and the main aspects of the proposed policies and procedures of the applicant as well as a regulatory business plan. SGRs are subject to ongoing regulatory requirements concerning the operation of their business, their own funds, reporting duties to the Bank of Italy and Consob, etc.
At present, only a few cases exist of Italian funds managed by AIFMs of other EU jurisdictions acting under the AIFMD passport provisions. These include some private debt funds and the funds managed by a full-scope UK AIFM into which the SGR previously managing them was merged.
As mentioned above, SICAFs were introduced in Italy as regulated entities with the implementation of the AIFMD. SICAFs can be formed as reserved AIFs and can be managed internally or by an external manager (an SGR or a full-scope EU AIFM). Unlike contractual funds, externally managed SICAFs cannot be formed unless their prospective founding shareholders obtain an authorisation from the Bank of Italy.14 Internally managed SICAFs have the double nature of AIFs and managers. An authorisation of the Bank of Italy is required for their formation. This authorisation covers only their internal management (internally managed SICAFs cannot manage other AIFs).
When the AIFMD was transposed into law, all then existing corporate vehicles carrying out private equity or venture capital investments and falling within the definition of AIF were faced with the alternatives of applying for an authorisation as SICAFs or being liquidated. Many of them opted to continue their investment business as SICAFs and applied for the authorisation. To our knowledge, only a few SICAFs were formed thereafter (mostly in the real estate sector). Contractual funds are indeed simpler legal vehicles, and adopting the corporate form provides no particular tax or other advantage.
ii Key legal terms
Traditionally, the terms of Italian funds targeting only domestic investors are simpler than those seeking commitments from international investors, although the gap is slowly closing and standard fund terms in the private equity arena are becoming the norm also for purely domestic funds.
The Italian regulatory framework has some impact on the terms of private equity funds. Investors may not be granted the right to opt out of specific investments. Italian law indeed provides that investors should share pro rata (in accordance with the rights attached to their class of fund interests) in the income, gains and losses of all portfolio investments of a fund. This makes negotiation on investment restrictions less flexible than it would be with fund vehicles in other jurisdictions as all restrictions should be contained in the fund's governing rules (not in side letters). Annual and semi-annual valuations of portfolio investments and fund interests must be made in compliance with (conservative) criteria laid down by the Bank of Italy. However, common fund terms require managers to provide investors with quarterly reports including valuations made in accordance with the International Private Equity and Venture Capital Valuation Guidelines issued by the IPEV Board.
Distribution waterfalls almost invariably follow the European 'fund-as-a-whole' model with an 8 per cent hurdle rate and a 20 per cent carried interest (with a catch-up mechanism). The greater bargaining power of investors after the financial crisis has resulted in tougher and more protracted negotiations putting certain traditional fund terms under pressure. Escrow and clawback provisions are more frequently negotiated to ensure effective protection against the risk of paying excess carry to the manager or members of its team. Given the small size of most local funds, average management fees continue to be 2 per cent of commitments during the investment period and 2 per cent of invested capital net of write-offs thereafter. However, rebates are frequently negotiated with investors making large commitments, particularly investors joining a fund at first closing. Extensions of a fund's investment period or term require the consent of a majority in interest of investors (less frequently of the advisory committee), and during such extensions investors normally expect to pay lower fees. The commitment a manager and its affiliates are typically requested to make to a fund is around 2 per cent of total commitments although individual arrangements may vary depending on a number of factors. No-fault remedies sought by investors often include, in addition to the removal of the manager, a right to trigger an early termination of the investment period or an early liquidation of the fund. However, these latter remedies tend to be pushed back by managers in exchange for other concessions. Key manager provisions attract much more attention than in the past, also as a consequence of some breakaways of senior team members of established fund managers in recent years. Triggers are generally becoming stricter and unresolved key manager events are often treated as cause for a removal of the manager (with limited exceptions depending on the nature of the event and with partially different economic implications). The definition of cause and the carve-outs in the esculpation and indemnification provisions have become other areas of more intense negotiation.
Side letters are commonly issued to address investor-specific needs or requests, including seats on the advisory committee, co-investment opportunities and particular information or assistance requirements. MFN clauses are recurring provisions in side letters. As the governing rules of a fund prevail over conflicting terms contained in side letters, care should be taken in determining whether (or subject to what conditions) a particular matter can be dealt with through a side letter.
iii Key items for disclosure
Fund managers generally prepare a private placement memorandum containing information in line with market practice for delivery to potential investors. A PPM typically includes information on the manager and its team, an overview of the relevant market, a description of the manager's investment strategy, deal flow, sourcing and investment process, the track record of the manager and senior team members, case studies from the manager's track record, a summary of key terms, a description of risk factors and a discussion of the main legal, regulatory and tax considerations affecting an investment in the fund. It is common practice for managers also to establish an electronic data room containing more detailed information on the manager and its investment transactions, legal documentation, updates and, frequently, responses to a standard due diligence questionnaire designed to streamline the due diligence process. PPMs and standard DDQs are very often prepared with the assistance of a placement agent.
Information contained in marketing documents must be accurate, comprehensible and non-misleading pursuant to applicable regulatory provisions. In addition, certain mandatory disclosures to potential investors are imposed by Italian and EU law. These include:
- pre-contractual information on the manager, its services, some of its policies, the nature of the fund interests and connected risks, all costs to be borne by investors in connection with an investment in the fund and the classification of investors as professional or retail clients under the provisions implementing the Markets in Financial Instruments Directive (MiFID);15
- an offering document concerning the fund containing the information set out in Article 23 of the AIFMD (the offering document); and
- if fund interests are offered to retail investors,16 a short-form document containing key information on the fund in the format prescribed by Regulations (EU) Nos. 1286/2014 and 2017/653 (key information document (KID)).
Full-scope AIFMs must file the offering document under (b) above with Consob and obtain a no-objection letter under the provisions implementing the AIFMD before fund interests can be marketed (see Section II.iv). If required, the KID is also to be submitted to Consob before marketing of fund interests (to retail investors) commences. The offering document and the KID must be kept separate from the PPM and other marketing documents.
For each managed fund, the manager must prepare and make available to investors the following documents in the format prescribed by applicable regulatory provisions:
- annual financial statements within six months of the end of any financial year (or of the shorter period in relation to which profits are distributed);
- semi-annual financial statements within two months of the end of any six-month calendar period; and
- a prospectus showing the value of the fund interests as at the end of any calendar semester.
Investments are valued in accordance with criteria set out by the Bank of Italy. The annual financial statements must be audited. Common fund terms generally impose shorter delivery terms for these documents and require managers to provide investors with quarterly reports prepared in accordance with the International Private Equity and Venture Capital Investor Reporting Guidelines issued by the IPEV Board, including a valuation of the portfolio at fair value.
Private equity funds are typically marketed by way of private placement, relying on the exemptions from prospectus requirements available under Italian law.17 Marketing is defined by law as any 'direct or indirect offering of units or shares of an AIF at the initiative or on behalf of its managing AIFM to investors domiciled or with a registered office in the Union'. No guidance as to what 'indirect' means in this definition is provided by regulatory authorities; however, it is sensible to assume that no 'offering' is made until the constitutive documents of a fund are in final form and a firm and binding commitment to the fund can be made by an investor. Reverse solicitation is not a legally defined term and no regulatory guidance on this concept is available. As a practical matter, a fund manager should not rely on reverse solicitation unless it has clear evidence that the initial contact with a potential investor in respect of a given fund was made at the initiative of the investor itself. Because offering fund interests in breach of the applicable regulatory provisions is a criminal offence, a manager should act cautiously when relying on reverse solicitation.
A full-scope SGR must notify Consob of its intention to market a fund in Italy indicating whether the fund is also expected to be marketed to professional investors in other EU Member States under the AIFMD. The notification must enclose the governing documents of the fund, the offering document and other documentation as indicated in Annex III or IV of the AIFMD, as applicable. Marketing activities can commence after Consob, having verified that the documentation complies with the AIFMD and its implementing provisions, issues a no-objection letter. This process takes some 30 days to complete. Sub-threshold managers are not required to go through this process to market their funds in Italy but do not benefit from the AIFMD passport provisions. Managers of EuVECA funds may market their funds in all EU Member States to professional investors and retail investors that commit to investing a minimum of €100,000 under the provisions of the EuVECA Regulation, as amended.
When seeking commitments to a fund, the manager must provide potential investors with the prescribed pre-contractual information, the offering document and (if fund interests are also offered to retail investors) the KID (see Section II.iii). Before accepting subscription agreements the manager must also comply with other requirements, including making appropriateness checks under the MiFID provisions and carrying out customer due diligence procedures under anti-money laundering and counter terrorist legislation. Special regulatory provisions apply when fund interests are offered to retail investors in Italy outside the principal or branch offices of the manager or of a licensed placement agent. These offerings must be carried out acting through licensed tied agents. Also, retail investors must be given the right to withdraw from their subscription agreements without paying any indemnity during a seven-day delay from the date of execution. Any breach of these provisions would make the agreements null and void.
Placement agents are frequently engaged by managers when marketing funds to non-Italian potential investors. Placement agents are instead rarely involved in a purely domestic fundraising.
Under the passport provisions implementing the AIFMD, full-scope EU AIFMs can market their EU AIFs to Italian professional investors and retail investors making a commitment to the fund of €500,000 or more. When transposing the AIFMD into law Italy cancelled its national private placement regime, which was then permitting the marketing of non-Italian AIFs by non-Italian AIFMs to Italian investors subject to an authorisation of the Bank of Italy. As a result, AIFs managed by non-EU AIFMs and non-EU AIFs managed by EU AIFMs may not be currently marketed to Italian investors. This marketing will be permitted when the third-country passport provisions of the AIFMD take effect with the adoption of the relevant delegated acts by the EU Commission (or in the context of the AIFMD review).
v Fiduciary duties
Italian AIFMs (SGRs and internally managed SICAFs) are required by law to act diligently, correctly and in a transparent manner in the best interests of the AIFs they manage, their investors and the integrity of the market. They must also: (1) be organised in a manner that minimises the risk of conflicts of interest and, in the event of a conflict, to ensure the AIFs they manage receive fair treatment; (2) adopt appropriate measures to safeguard the rights of the investors in the AIFs they manage and have adequate resources and adopt appropriate procedures to ensure efficient performance of their services; (3) in the case of reserved AIFs, give preferential treatment to individual investors or categories of investors only in accordance with the AIFMD; and (4) exercise the voting rights attached to financial instruments held by the AIFs they manage in the investors' interest.
iii REGULATORY DEVELOPMENTS
i Regulatory agencies
The Bank of Italy is empowered to issue regulations determining the activities that may be carried out by Italian managers and establishing their legal duties and requirements within the framework of primary legislation applicable to them. Matters covered by Bank of Italy regulation include minimum capital, own funds, risk management, permitted holdings, corporate governance and organisational requirements (including control functions), outsourcing of key functions and services, remuneration and incentive systems and safekeeping of assets. Also AIFs are subject to the regulatory powers of the Bank of Italy that cover matters such as investment diversification, limitation of risk, format of financial statements, valuation of assets and conditions to satisfy when valuation functions are delegated to an outsourcer. The Bank of Italy authorises Italian entities to carry out collective portfolio management services and keeps the roll where they are registered.
Consob is empowered to issue regulations concerning the duties of transparency and fair business conduct of fund managers in the provision of collective portfolio management services. No objection letters permitting Italian managers to market their AIFs under the provisions implementing the AIFMD are released by Consob. Other regulatory powers of Consob cover matters including inducements, conflicts of interest, personal transactions, complaints handling and knowledge and competence of personnel.
Within their respective remits, the Bank of Italy and Consob have regulatory oversight for Italian managers and AIFs.
Authorisation requirements applicable respectively to SGRs and internally managed SICAFs are dealt with in Section II.i in relation to contractual funds and SICAFs. The establishment of reserved AIFs of a contractual nature is not subject to authorisation, registration or any similar requirement; however, their governing rules must be delivered to the Bank of Italy as a reporting requirement. The authorisation requirement applicable to externally managed SICAFs is dealt with in Section II.i in relation to SICAFs.
Tax exemption at fund level
Italian tax rules consider all AIFs opaque (i.e., non-transparent) entities, regardless of their legal form (i.e., both contractual funds and SICAFs), and treat them as separate taxable persons for Italian purposes. To avoid double taxation, AIFs are fully exempt from income taxes in respect of profits and gains realised in respect of their investments. An exemption applies also in respect of other direct taxes, such as the regional tax on productive activities, although funds established in corporate form (i.e., SICAFs) remain subject to the regional tax on certain management and subscription fees.
No tax ruling is required for this tax regime to apply. Any AIF established in compliance with Italian laws, regardless of whether it is managed in Italy or elsewhere, is considered tax-exempt and is treated as resident in Italy for domestic purposes (as such, it could in theory also avail itself of tax treaties signed by Italy).
The Italian tax authorities have confirmed that, after the implementation in Italy of the AIFMD, AIFs should be subject only to the tax laws of the jurisdiction in which they are established and that, accordingly, the fact that a non-Italian AIF could be managed by an Italian SGR does not trigger per se the application of Italian tax rules on the AIF itself or on its investors.
Taxation of investors
While AIFs are exempt, income taxes in principle apply at the level of their investors. Italian tax rules characterise as 'income from capital' all profits and gains derived from the investment in AIFs. Such income is subject to a withholding tax, which is levied at the standard rate of 26 per cent (although lower rates or exemptions apply in respect of certain investors) in the following cases: distributions, sale or redemption of the fund units or shares, and liquidation of the fund.
The taxable base includes all proceeds effectively distributed to the investors, as well as the balance between the value of the units or shares upon sale or redemption or liquidation of the fund and the subscription or purchase value of the same units or shares. The withholding tax is provisional or final, depending on the nature of the investor. In general, with some exceptions, it is a final levy for all resident investors not acting in a business capacity and for non-resident investors.18
However, the following eligible non-resident investors satisfying specific procedural requirements are entitled to a full exemption from the domestic withholding tax:
- certain international entities established in accordance with international treaties;
- investors resident for tax purposes in a whitelisted country (i.e., a jurisdiction that is recognised by a special regulation as having in place with Italy an effective exchange of information for tax purposes); and
- institutional investors established in a whitelisted country (this definition includes entities whose activity consists in investing or managing investments, for their own benefit or on behalf of third parties, regardless of their legal status or tax treatment in the country of establishment).
As a result of the recent international trend of enhanced cooperation between tax authorities, the great majority of foreign jurisdictions have now been included in the Italian whitelist (originally approved by Ministerial Decree of 4 September 1996), which now comprises 134 countries.
In practical terms, most foreign investors are nowadays allowed to rely on the exemption on proceeds of the Italian AIFs in which they invest.
VAT and other indirect taxes
Fees charged for management of AIFs and certain related services are exempt from VAT, while fees due for custodian and controlling activities are subject to the standard VAT rate (currently 22 per cent).
VAT rules in principle apply also to transactions carried out by a SICAF or by an SGR on behalf of contractual funds under management. The investment activities of private equity funds, however, generally fall within the scope of the VAT exemption for financial services (this also entails that input VAT paid in respect of certain services received is not recoverable).
Neither the set up of AIFs, nor the subscription or sale of their units are subject to any proportional ad valorem registration taxes or similar duties.
An annual stamp duty, at the proportional 0.2 per cent rate, may apply to the net asset value of AIFs units or shares, as resulting from their financial statements. This is, in practice, a wealth tax, which applies to all financial investments of certain investors and which is levied by the financial intermediaries involved with holding such investments. For investors other than individuals, this stamp duty is in any case capped at €14,000 per year (although many investors are de facto fully exempt because they do not fall within the subjective scope of application of the stamp duty).
Until 2016, there were neither statutory rules nor revenue guidelines specifically dealing with the Italian taxation of carried interest schemes of private equity funds. Careful planning was therefore required to efficiently structure the carried interest for managers of Italian AIFs, having regard to general income tax rules and principles that provided only limited guidance to distinguish between employment-related income (taxable at marginal progressive income tax rates, up to 43 per cent plus surcharges) and investment income (subject to a flat rate of taxation at 26 per cent).
Typically, Italian fund structures set up in past years required an actual financial investment (in most cases ranging between 1 per cent and 3 per cent of the total commitments raised) to be made by the managers in special classes of units or shares of the AIFs that give right to special distributions representing the carried interest entitlement.
In general, the proceeds received by the managers from their investment in these special classes of units of the AIFs were (and still are, subject to certain conditions) characterised as investment income and taxed accordingly. However, the notion of employment-related income laid down by Italian tax rules is very broad, so that the distinction is not always clear-cut and there remains a grey area, where possible concerns could easily arise.
In recent years, the private equity fund industry submitted various proposals to the Italian lawmakers and to the tax authorities to obtain the approval of a special safeguarding rule setting clearly the terms and conditions for the full assimilation of this investment to other financial investments.
After various discussions, in April 2017 the government approved a law decree containing special tax rules for the characterisation and taxation of carried interest, which were subsequently confirmed by the Italian parliament. According to the new provisions (which de facto operate as 'safe-harbour rules', as clarified also by the Italian tax authorities) income from direct or indirect participation in companies, entities or investment funds (including AIFs) established in Italy, or in a jurisdiction allowing an adequate exchange of information, arising from shares or other similar financial instruments granting enhanced economic rights (i.e., the carried interest shares or units), will be deemed, by operation of law, as investment income subject to a flat rate of taxation at 26 per cent.
This safe harbour regime applies, as far as AIFs are concerned, provided that all the following conditions are met:
- the carried interest holders collectively invest in the AIF (directly or indirectly) an amount of at least 1 per cent of the total commitments (including also investments in ordinary shares or units);
- the carried interest distributions are subordinated (i.e., they become due only when all the other investors have received a return equal to the invested capital plus hurdle); and
- the special shares or units to which carried interest distributions are attached are held for at least five years.
If one or more of the above conditions cannot be met, the carried interest could still be considered as investment income, subject to a case-by-case analysis and to careful planning and scrutiny. In this respect, the Italian tax authorities have already issued interpretative guidelines (addressing cases where one or more conditions set by the new rules are not satisfied) and have confirmed that they are willing to analyse and provide their view on specific situations if a ruling application is submitted to them.
Special tax incentives available to managers (individuals) relocating to Italy
Managers of private equity funds who plan to relocate to Italy, either for personal reasons or in the context of the establishment of an Italian office of the firm for which they work, can benefit from various tax advantages, which have been extended and made much more appealing, starting from 2017.
The first set of rules that could be of interest for such managers (especially for those moving to Italy to perform a working activity within the country) are those for inpatriate workers. In a nutshell, these rules grant a 50 per cent exemption from personal income taxes, for up to five years, to qualifying new residents in respect of income that they earn from employment or from self-employment activities performed in Italy.
Other very favourable tax incentives are provided by the new 'flat-tax regime', which allows individuals wishing to move their tax residence to Italy to pay an annual flat tax rate of €100,000 in respect of income and gains of any nature (with very limited exceptions) arising from foreign sources (i.e., produced outside Italy);19 in practical terms, only income and gains from Italian sources, if any, remain subject to ordinary income taxes.20 This regime is therefore very appealing to persons who do not have significant business interests in Italy, or whose working activity or source of income is predominantly based outside Italy; as a matter of fact, a few managers of non-Italian private equity firms have already moved their personal residence to Italy to take advantage of the flat-tax regime, which is available to any individual who has not been fiscally resident in Italy for at least nine of the previous 10 fiscal years. The option of this special regime can be taken year after year, for a maximum of 15 years. A ruling can be obtained by managers interested in assessing whether the flat-tax regime can be applied to them and the specific effects of the regime in respect of their personal situation (e.g., as concerns carried interest structures set up prior to their possible relocation to Italy).
iv Key changes to the regulatory regime
Recent regulatory changes affecting the Italian private equity and venture capital industry include the recast of MiFID (MiFID II),21 the revision of the EuVECA Regulation22 and the EU Regulation on key information documents for packaged retail and insurance-based investment products (the PRIIPs Regulation).23 These regulatory changes originate from EU legislation. Implementing legislation was introduced in Italy in 2017 and subsequent regulatory provisions were published by Consob in 2018.24
Under the provisions on product governance implementing MiFID II, Italian fund managers are required to identify the target market and to define the distribution strategy for each fund they plan to establish and market by using five cumulative criteria:25 (1) the type of client (according to the client categorisation as 'retail client', 'professional client' or 'eligible counterparty', as applicable); (2) the client's knowledge and experience; (3) the client's financial situation and ability to bear losses; (4) the risk tolerance and compatibility of the risk or reward profile of the fund with the target market; and (5) the client's objectives and needs. If the fund is marketed through a distributor subject to the above MiFID II product governance requirements, the fund manager is expected to provide the distributor with reliable and adequate information on the product for the distributor to properly discharge its duties concerning the definition of the target market and distribution strategy for the fund. MiFID II implementing provisions also require fund managers to provide investors with much more detailed pre-contractual information on risks, costs and associated charges.
The 2013 EuVECA Regulation was designed to introduce a simplified regime for establishing funds making qualifying investments in innovative SMEs and for marketing them on an EU-wide basis. As the number of EuVECA funds registered in the first three years following the introduction of this regime was below the expectations, the EuVECA Regulation was amended in 2017 to eliminate some perceived obstacles to a wider diffusion of these funds. Under the amended Regulation – effective 1 March 2018 – the establishment of EuVECA funds is no longer reserved to sub-threshold managers, as in the previous regime: also authorised full-scope AIFMs are able to establish and market these funds using the EuVECA simplified passport regime. In addition, (1) eligible investments include companies with up to 499 employees (249 in the previous regime) not admitted to trading on a regulated market or on a multilateral trading facility, and SMEs listed on SME growth markets, and (2) EU authorities in the jurisdictions where EuVECA funds are marketed are no longer allowed to impose fees or other charges on EuVECA managers if no supervisory task is to be performed.
Pursuant to the PRIIPs Regulation and its implementing provisions (effective 3 January 2018), fund managers are required to deliver a KID to retail investors before a fund is marketed to them. The KID is an easy-to-read short-form document (maximum three A4 pages) containing key information on the fund in a prescribed format. Its sections include information on the type of product and its objectives, a summary risk indicator (supplemented by a narrative explanation of the indicator), a performance scenario, whether the investor may face a financial loss because of the default of the manager, the direct and indirect costs associated with an investment in the fund (also presented by means of summary cost indicators), the recommended holding period and the steps to be followed for lodging a complaint. Information about the cumulative effect of costs on return to be provided to investors pursuant to the implementing provisions of MiFID II partly overlaps and should be coordinated with information on costs to be included in the KID.
The Italian private equity industry is currently facing a transition period. A number of investment teams that raised large funds attracting commitments from primary international LPs in the early part of the 2000s have been unable to consolidate their market position in the subsequent decade – because generational turnover issues were not managed adequately or for other reasons – and split into smaller teams or just closed down. In a domestic scenario where there continues to be little institutional capital invested in the PE sector, as compared to other countries, established teams now manage smaller funds generally than those of their predecessors (with some exceptions). Also, the global trend towards concentration of capital into a smaller number of top-performing managers (with larger commitments compensating for the increased costs and efforts involved in carrying out deeper due diligence scrutiny) is indirectly raising barriers to the further growth of regional managers falling below the radar screen of most large international LPs.
The local industry is essentially composed of fund managers investing in the various segments of the domestic mid-market. These include several established players managing fund III or IV and having the right profile (track record, deal flow, disciplined investment strategy, team cohesion, size, etc.) to raise funds both in the domestic market and from international investors. Over time, a few of them created multi-jurisdictional teams and structures developing an ability to invest funds also in other EU countries (typically, the United Kingdom, France, Germany and Spain). Other notable players in the Italian market are managers of large funds promoted by the public sector and mostly backed by significant capital commitments of Cassa depositi e prestiti, which are active in areas and investment strategies viewed as critical for the national economy (strategic businesses, infrastructures, turnaround, venture capital, etc.). Recently, unregulated investment schemes pooling capital contributed on a deal-by-deal basis mostly by family offices and high-net-worth individuals have become more popular, and a number of these schemes have been set up.26
While this scenario is unlikely to evolve quickly, some recent legal developments may impact on the industry in the short term. In January 2019, the European Banking Authority (EBA) issued final guidelines on specification of types of exposures to be associated with high risk under Article 128(3) of the Capital Requirements Regulation (CRR).27 These guidelines clarify that the notion of investments in venture capital firms and private equity contained in Article 128(2) CRR only applies to 'direct investments and whenever the look-through approach is used for exposures in the form of shares or units in collective investment undertakings'. As a result, banks' exposures to private equity funds are not treated as being necessarily associated with high risks under Article 128(2) CRR (which would result in such exposure receiving a risk weight of 150 per cent). Hopefully, this clarification will be of help to banks wishing to increase their investments in private equity funds.
Pursuant to legislation introduced at the end of 2016 (and initially modified in 2017), individuals not acting in a business capacity who invest money28 in certain individual savings plans (PIRs) benefit from a tax exemption on all income and gains deriving from their long-term29 investment. The benefit is aimed at incentivising direct and indirect investments in Italian business entities and in EEA business entities with a permanent establishment in Italy. To this end, at least 70 per cent of the PIRs' assets must be invested in financial instruments (equities or bonds) issued by these entities, and at least 30 per cent of this 70 per cent30 must be in financial instruments issued by entities not included in the main index of Borsa Italiana nor in equivalent indexes of other regulated markets. These requirements may be met also indirectly, by investing in PIR-compliant funds. A similar tax benefit is available to pension funds investing up to 10 per cent of their assets in PIRs or in the equity of Italian companies or EEA companies with a permanent establishment in Italy or in Italian or EEA funds that invest primarily in the equity of such companies (provided that these investments are held for at least five years). The amount invested in PIRs was about €11 billion in 2017. The aggregate size of PIR schemes increased in 2018 but at a slower pace partly because of volatility in the public markets. So far, PIRs have targeted predominantly public equities and open-end funds. To mitigate this trend, the legal regulation of PIRs changed in December 2018 such that PIRs are now also required to invest money in certain unlisted equities. In particular, under the new provisions at least 3.5 per cent of the PIRs' assets must be invested in venture capital funds that are established in Italy or in other EEA countries and that in turn invest 70 per cent or more of their assets in Italian SMEs and EEA SMEs with a permanent establishment in Italy.
Other ongoing and future developments that are expected to affect the industry structure include the following.
As part of the European Commission's Capital Markets Union Action Plan, in March 2018 the Commission published a proposal (consisting of a regulation and a directive) designed to optimise the EU passport and to improve cross-border distribution of funds in the EU within the context of, among other things, the AIFMD and the EuVECA Regulation. This proposal notably includes provisions harmonising the definition of and conditions for pre-marketing of funds within the EU with a view to ensuring that the notion of marketing is consistently applied by EU national regulators, so that AIFMs can carry out pre-marketing activities in all EU Member States under the same (harmonised) conditions. The Council and the European Parliament's ECON Committee have already defined their positions on this proposal, and a final agreement before the 2019 European elections looks possible.
In Italy, the categories of permitted investors in a reserved AIF are likely to be modified in the near future. In addition to professional investors (and to directors and employees of the AIFM), these currently include retail investors committing €500,000 or more to the AIF (see Section II.i). The €500,000 threshold has been criticised by the industry as too high, given that non-reserved AIFs are also subject to strict prudential requirements that are not compatible with the features of many AIFs, including private equity and venture capital funds. The Italian regulators are considering different protections for retail investors wishing to invest in reserved AIFs, focusing on the requirement that their admission as investors is based on suitability assessments carried out under MiFID II. It is anticipated that, with the introduction of this requirement, the €500,000 threshold will be eliminated or substantially reduced.
After the recent revision of the EuVECA Regulation,31 it is likely that a number of Italian managers wishing to market their funds in additional EU jurisdictions will consider registering as EuVECA managers, a viable alternative to the AIFMD passport, in light of the relaxed provisions on eligible investments. Indeed, the formal requirements associated with using the EuVECA passport are simpler than those applicable under the AIFMD, and the provisions protecting managers against fees charged by EU authorities in the jurisdictions where EuVECA funds are marketed will be viewed as an additional benefit.
1 Enzo Schiavello and Marco Graziani are partners at Legance – Avvocati Associati.
2 The figures in this chapter (other than those relating to individual funds) are published by AIFI, the Italian association of private equity, venture capital and private debt firms.
3 The second half-year figures were not available at the time of writing.
4 €5.310 billion was raised by institutional fund managers sponsored by Cassa depositi e prestiti (an Italian government-owned organisation), including QuattroR, Fondo Strategico Italiano, Fondo Italiano d'Investimento and F2I.
5 Including a €1.74 billion rollover of commitments from F2I's first fund (merged into the third fund).
6 For example, Cassa Forense (lawyers' pension fund) committed €175 million, as anchor investor, to Asset Management Umbrella Fund, an initiative promoted by the European Investment Fund to offer diversified exposure to funds investing in EU small and medium-sized enterprises.
7 Under the AIFMD, a light registration regime applies to sub-threshold AIFMs but national authorities may impose stricter rules.
8 These include (1) professional investors under the AIFMD, (2) entities and individuals making a commitment of €500,000 or more to the AIF, and (3) directors and employees of the AIFM.
9 Private equity funds may not be established as open-end vehicles under Italian regulatory provisions.
10 See footnote 22.
11 Sub-threshold managers of EuVECA funds must be registered in a special roll kept by the Bank of Italy. To obtain this registration, the managers must satisfy conditions mirroring those applicable to sub-threshold AIFMs requesting an authorisation.
12 This Regulation is expected to be replaced by the regulatory provisions of the Bank of Italy mentioned in footnote 24.
13 €500 million if the assets are acquired without the use of leverage at fund level and the investors have no redemption rights exercisable during a period of five years following the date of initial investment in each AIF. €100 million in all other cases.
14 Indeed, these SICAFs can retain a number of functions that, in the event of a contractual fund, fall within the responsibilities of an authorised manager (including marketing of shares and valuation of assets).
15 See footnote 21.
16 Qualifying investors in reserved AIFs include retail investors committing €500,000 or more to the AIF.
17 These exemptions include offerings made to certain qualifying financial intermediaries established by Consob or to a number of potential investors (excluding the intermediaries) not exceeding 150 or to parties investing €100,000 or more.
18 Note that a full exemption applies to Italian and foreign investors holding units of Italian (or EU or whitelisted EEA) venture capital funds that invest at least 85 per cent in certain qualifying SMEs (in one of the following phases: seed financing, start-up financing, early-stage financing, expansion or scale-up financing), provided that a number of other statutory conditions are met. The definition of eligible venture capital funds and the identification of qualifying SMEs, as well as the other conditions for benefiting from this exemption, have recently been updated in the 2019 Budget Law.
19 The benefits of the flat-tax regime may also be extended to other eligible family members by paying an additional €25,000 per year in respect of each additional relative.
20 Applicants for the flat-tax regime are also fully exempt from (1) Italian wealth taxes on real estate and financial investments held abroad, (2) Italian gift and inheritance taxes on the value of foreign assets and investments, and (3) reporting and filing obligations in relation to the Italian tax authorities in respect of such foreign assets.
21 Directive 2014/65/EU (recasting Directive 2004/39/EC as amended) as supplemented by Commission Delegated Directives (EU) 2017/565 and 2017/593.
22 Regulation (EU) 2017/1991 amending Regulation (EU) No. 345/2013.
23 Regulation (EU) No. 1286/2014 (as amended by Regulation (EU) 2016/2340) as supplemented by Commission Delegated Directives (EU) 2017/653 on key information documents for packaged retail and insurance-based investment products (PRIIPs).
24 The implementing process of MiFID II includes regulatory provisions of the Bank of Italy introducing new corporate governance and organisational requirements for fund managers (also covering whistle-blowing and outsourcing of cloud services). Following publication of a consultation document in 2018, the process is expected to complete in 2019.
25 In accordance with the ESMA Guidelines on MiFID II product governance requirements of 2 June 2017 (ESMA35-43-620).
26 Including Equity Partners Investment Club, promoted by Mediobanca.
27 Regulation (EU) No. 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No. 648/2012.
28 Up to €30,000 per year and €150,000 over five years.
29 PIRs must hold qualifying investments for at least five years.
30 21 per cent of total investable assets.
31 See Section III.iv.