Il blog di Simone Facchinetti
SPONSORSHIP OF AMATEUR SPORTS ASSOCIATIONS, PRESUPPOSITIONS FOR “ABSOLUTE” DEDUCTIBILITY
Dr. Alberto Trabally - a certified public accountant and auditor, holds a master’s degree in audit and control by the University of Pisa, attended prestigious LLM in Vienna on International Tax Law specializing in international taxation. He has significant experience working with multinational and consulting companies involved in Wealth Management. Co-author of numerous books and articles of a financial nature, the author of the “tax aspects” manual of the book “Sponsors and Sponsors”, by Simone Facchinetti - Ed. Fag
Sponsorship of sports associations
Sports sponsorship has long been at the center of intense disputes and litigation between the sponsoring company and the financial administration, which resulted in these sponsorship costs being considered in the area of entertainment expenses (partially deductible for tax purposes), and not in advertising (completely decreasing).
The consequences are of considerable distrust on the part of the sponsor companies in providing money to sports bodies (whether these are companies or associations), and those were considered as "risky" transactions and were too often the subject to tax checks/audits and assessments.
However, it should be noted that, unlike the Revenue Agency, the success of sponsoring companies continues, during the tax disputes regarding the special qualification of sponsorship fees for money disbursements, in favor of amateur sports associations for amounts lower than 200,000 euros.
In fact, despite the attempts of the Tax Authorities to ascertain such disbursements/payments as entertainment expenses with reduced tax advantages, the Court of Cassation (recent is n. 17973 dated 9/7/2018) with numerous court decisions reduced the “success hope” of the same Revenue Agencies that recognize these expenses, and in the presence of certain conditions, also the qualification of sponsorship costs/expenses.
Sponsorship and Article 90 of Law 289/2002 in the field of amateur sports activities
There is no doubt that the provision of Art. 90, c. 8 of Law 289/2002, is of absolute importance in the field of tax law for sports associations.
For this reason, the analysis of the art. 90 of Law 289/2002 is an essential element for the correct application of the consequent tax benefits.
The definition of Art. 90 of Law 289/ 2002
Article 90, paragraph 8 of Law no. 289 of 2002, states that cash or in-kind reimbursement to companies, amateur sports associations and foundations made up of school sports associations that carry out activities in the youth sectors recognized by the national sports federations or by sports promotion organizations constitutes for the lender up to a total annual amount not exceeding 200,000 euros, advertising costs aimed at promoting the image or products of the lender through a specific activity of the beneficiary, according to Art. 74, co. 2 (now clause 2 of Article 108) of the Consolidated Income Tax Act. ”
The methods of application of the aforementioned have been clarified by CM 21/E, dated 22 April 2003, which states that the above mentioned provision introduces an absolute presumption regarding the nature of the expenses incurred in relation to income tax issues in sponsorship contracts. In CM 21/E of 2003, two other conditions have been highlighted that must exist in order to deduct sponsorship costs, such as:
- paid fees should be used to promote the image or products of the lender;
- for the payment of these fees, a specific activity of the beneficiary must be identified.
The objective of the Art. 90 of Law 289/2002 is to define the absolute presumption that the payments in cash or in kind for an annual amount not exceeding 200,000 euros, in any case, represent advertising costs pursuant to Art. 108, c. 2, TUIR.
For the exceeding amount of 200,000 euros, it must be assumed that they are not subject to any provision of interpretation and their tax treatment is determined by the verification of the nature of such sums as advertising expenses or entertainment expenses.
Therefore for the amounts up to 200,000 euros (as per article 90 of Law 289/2002) there is an absolute presumption of advertising costs; however, this detects in automatics, only for amateur sports associations that are in possession of recognition for sporting purposes issued by CONI (or by delegation from CONI, by national sports Federations, by associated disciplines or by sports promotion bodies).
CONI has implemented a register that identifies recognized entities and is obliged to submit annually to the Revenue Agency the list of amateur sports associations and associations indicated in the register and, therefore, recognized for sports purposes. It should be noted that the National Council of CONI, with Resolution of 18 July 2017, approved the new rules governing the operation of the register of companies and amateur sports associations.
Starting from 1 January 2018, a new IT platform is in operation: therefore, from this date, all the legal representatives of the sports associations/companies must provide accreditation for the new platform. The web address is: https://rssd.coni.it.
Sponsorship contracts signed with amateur sports associations - recent court interventions
If, on the one hand, there are uncertainties regarding the tax classification of sponsorship, then for the reasons mentioned above, it seems, on the contrary, for the contracts in question, concluded with amateur sports associations, there are certain fixed points in favor of such qualifications as advertising and propaganda costs are fully deductible.
The jurisprudence, following the evaluative acts of the Revenue Agency, has intervened several times to confirm the absolute nature of the presumption of the provision envisaged by art. 90 of Law 289/2002.
In this sense, we must point out recent declarations of cassation, which leave no doubt as to the accuracy of the above stated provision.
Or it can be considered that it is now a peaceful orientation on the part of the Supreme Court in the Judgments: Cassation n. 17973/2018, Cassation n. 8981/2017, Cassation n. 7202/2017, Cassation n. 5720/2016.
These proposals are also mentioned in subsequent judicial interventions in the Regional Tax Commissions, among which we would like to highlight:
- Judgment n. 3004 of 2 November 2017, the Regional Tax Commission, Bologna, Section XI;
- Judgment n. 1986 of 20 September 2017 of the Regional Tax Commission, Florence, Section XIII;
- Judgment n. 2442 of 20 July 2017 of the Regional Tax Commission, Bari, Section VII.
In fact, the judgment of the Cassation n. 8981, of 6 April 2017, accepts the appeal of the tax payer and states that there is no doubt that Article 90, paragraph 8, Law 289/2002, has established a legal presumption of inheritance and deductibility of the expenses “de quibus” up to a tender of 200,000 euros, if paid to amateur sports associations. As far as the following criteria are met:
a) the sponsored body is an amateur sports team;
b) the quantitative expenditure limit is respected;
c) the sponsorship aims to promote the image and products of the sponsor;
d) the sponsored body actually has a certain promotional activity in place.
Obligations proposed to comply with the requirements of the ministerial circulars and the latest sentences of the Court of Cassation
Below are listed the obligations to be respected in order to comply with the ministerial circulars and the decisions of the Court of Cassation, with particular attention to redemption disputes due to lack of inheritance (according to TUIR article 109, paragraph 5) and low cost.
So what you need to do is:
- the sponsor confirms the registration of the sports association in the CONI register. The verification can be done by accessing the relevant section of the CONI portal using the tax code of the association.
- entered into force on January 8, 2018, instead of January 1, in order to allow the transfer of the data of the companies/associations already registered by the “old” to the new application;
- approved by the Regulation, the result of the decision of July 18, 2017, paragraph 1574, which, however, must be updated in connection with the changes made by the Budget Law for 2018;
- drafting of the sponsorship contract, or a contract with corresponding services. The contract must contain details of the sponsor’s actions and activities.
- Contract term indications. It is necessary to highlight the duration and the specific advertisement performances (the seasonal tenders) and the commercial reasons of the company;
- printing and the archiving of documentation. It is advisable to collect documentation hand by hand (and not all at the termination of a contract term or after the assessment by the Revenue Agency) as documentation to support costs incurred or banners (even photos with identical playing fields);
- report on the activity carried out. It is considered quite useful to receive a report on the activity carried out by the person who provided the service. The content of this report will have to retrace what has been done during the season and the compliance with the written contract.
These obligations should be considered as a “guide” for the taxpayer in order to reduce potential disputes coming from the financial administration side.