Article 11 of Decree Law No. 38/2026 significantly amends the tax regime for dividends received by business entities and capital gains on shareholdings, eliminating the conditions introduced by the 2026 Budget Law that made the application of the relevant tax relief regimes subject to holding a minimum shareholding of 5% or a shareholding with a tax value of no less than 500,000 euros. By express provision, the new law applies retroactively from January 1, 2026. Consequently, the limitations introduced by Law 199/2025 regarding the exclusion of dividends from business income and access to the participation exemption have effectively been removed from the outset, restoring the previous regulatory framework.
The repeal of the new shareholding thresholds
The now-repealed provisions had affected Articles 58, 59, 87, and 89 of the TUIR, providing that the benefit of dividend tax exemption and the PEX regime were recognized only in the presence of a qualified shareholding threshold, measured alternatively in percentage terms or absolute tax value. Specifically, for dividends, it had been stipulated that the exclusion from income applied only where the shareholding in the issuer was at least 5% of the capital or had a tax value of at least 500,000 euros. The retroactive elimination of these conditions means that the new shareholding thresholds must be considered null and void, both with regard to dividends declared from January 1, 2026, and with regard to capital gains relating to shareholdings acquired from the same date. In this respect, the tax decree neutralizes ex tunc a regulatory change that, although intended to affect future tax returns, had already altered the interpretive and applicative framework for operators.
The effects on the calculation of advance payments
An immediate consequence of the regulatory intervention concerns the system of advance payments. In fact, the obligation to recalculate the 2026 advance payment provided for by Article 1, paragraph 54, of Law 199/2025, based on the assumption that the restrictive rules introduced by the same law were already operational for the purposes of reconstructing the 2025 historical tax, no longer applies. As a result of the repeal, the historical method returns to following ordinary rules, without the need for recalculations based on a provision that has now been removed with retroactive effect.
Potential critical issues in relations with EU/EEA shareholders
However, the situation does not appear entirely neutral from an application perspective, as effects may have already occurred in cases of profit distributions made to companies resident in other member states of the European Union or the European Economic Area, subject to the 1.20% levy pursuant to Article 27, paragraph 3-ter, of Presidential Decree No. 600/73. In such cases, the temporary introduction of the 5% threshold or the 500,000 euro tax value could have led withholding agents to apply, in the absence of the shareholding requirement, the ordinary treaty withholding tax instead of the reduced one.