According to ECJ ruling 27 April 2023 Case C-537/20), Article 63 of the TFEU precludes any distrimination between the tax treatment on of non resident specialized property funds and resident specialised property funds. If the latter are exempted from income tax, the former must be exempt as well.
The issue concerned a Luxembourg specialized investment fund which was subject to corporate income tax in Germany on income deriving from the rental and the sale of its German properties. On the contrary, a comparable domestic specialized property fund would have not been subject to corporate income tax in Germany on the same type of income.
The German tax authorities argued that the exemption from corporate income tax of German Funds was due to avoid double taxation, in order to tax income is taxed only in the hands of the investors. The same principle could not apply as for Foreign Funds whose investors would not have been taxed under German law.
According to ECJ held the different tax treatment of German Funds and Foreign Funds was a restriction to the free movement of capital under Article 63 TFEU.
Moreover, the ECJ noted that the situation of the German Fund and of the Foreign Fund were objectively comparable. Therefore, the different tax regime was not reasonable considering overriding public interest. Indeed, the taxation of profits in the hands of the investors didn’t justify such discrimination since the full taxation of income at the investors’ level was not a prerequisite of the exemption.
The aforementioned conclusion is suitable to produce some effect also for what Italian tax system is concerned.
Italian real estate investment funds are subject to Italian corporate tax, though being exempt on the most part of their income (including income from the lease and sale of their properties). Although no official positions of the Italian tax authorities on the taxation of foreign funds are available, in principle they are subject to tax on income they derive from properties located in Italy.
In a nutshell, while Italian real estate fund are for the most part exempt, foreign real estate fund are taxed as for real estate income.
Indeed 2021 Financial act provided for the exemption of dividend/capital gains distributed/realized by EU investment fund. However such exemption does not “cover” real estate income (and in any case applies only for what EU fund are concerned, while there are reasons to argue that such exemption should apply also to non EU funds).