The Court of Cassation, with order no. 13128/2026, confirmed a principle of particular importance regarding the “parent-subsidiary” regime: the withholding tax exemption on dividends may apply even when the documentation certifying the requirements of the non-resident parent company is obtained by the Italian company after payment of the profits, provided that the substantive conditions required by law are actually met. The ruling forms part of an increasingly established approach aimed at emphasizing the substance of the shareholding relationship over mere formal compliance with the deadline for obtaining documentation. Article 27-bis, paragraph 3, of Presidential Decree 600/1973 provides that the documentation proving compliance with the requirements must be obtained by the date of payment of the profits. However, according to the approach confirmed by the Court of Cassation, this provision does not automatically result in the loss of the benefit in the event of late submission.
The case subject to the order
In the case examined, an Italian company had paid dividends to its Danish parent company in June 2007, while the certification from the parent company was received only on July 9, 2007. In strictly formal terms, therefore, the documentation had been obtained after the time of payment. The Supreme Court nevertheless confirmed the favorable decision rendered at second instance, holding that the late transmission of the certification was not, in itself, an obstacle to recognition of the exemption.
The documentary deadline is not of a preclusive nature
The order is consistent with the previous judgment no. 27646/2023, according to which the deadline for prior acquisition of documentation is established in the interest of the resident subsidiary company. The latter, by deciding not to apply the withholding tax despite not yet having received the documentation, assumes the risk connected to its position as withholding agent. Its liability therefore remains if it subsequently emerges that the exemption was unduly applied due to lack of substantive requirements. The Court of Cassation clarifies, in particular, that the function of prior documentation is to enable the Italian company to assess whether to proceed with the exemption request. It follows that, where the documentation is received subsequently and confirms the existence of the requirements, the preferential regime may nevertheless apply. The violation of the documentary deadline therefore does not constitute a preclusive event, but is relevant in terms of the withholding agent’s liability in the event that the exemption subsequently proves to be undue.
Cooperation and good faith in relations with the Tax Authorities
The ruling also emphasizes the principles of cooperation and good faith. The Court observes that, where the parties are aware of the existence of substantive requirements, the application of withholding tax followed by a subsequent refund request could prove unnecessarily burdensome. Such a procedure would in fact be neutral for the Tax Authorities, which would then be required to refund the amount withheld, but would entail an additional burden of compliance and formalities for the taxpayer.
The positions of the Italian Revenue Agency and EU law
The interpretative framework is also consistent with certain recent positions of the Italian Revenue Agency. Regarding intra-Community dividends, ruling responses no. 537/2021 and no. 48/2025 admitted the possibility of subsequently verifying the requirement of uninterrupted holding of the shareholding, subject to the need to reinstate the withholding obligation in the event that the minimum period is not actually completed. A similar principle was recalled, regarding interest, in response no. 49/2025.
The interpretative evolution finds further confirmation in EU law. The judgment of the EU Court of Justice in case C-828/24, relating to Directive 2003/49/EC on interest and royalties, in fact reinforces the approach according to which the exemption may apply even when the documentation certifying the requirements is produced after payment of the income, provided that such requirements actually exist.