Under the direction of the Public Prosecutor's Office of Bologna, the investigations, conducted by the military of the Economic-Financial Police Unit of the Provincial Command of Bologna, brought to light the existence and the operation in Italy of the hidden permanent establishment of a British company belonging to a well-known multinational group operating in the luxury e-commerce sector.
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The investigations started with the development of a complex and articulated risk analysis, in close synergy with the Emilia Romagna Regional Directorate of the Revenue Agency, on the main business models of e-commerce.
According to the investigative prospect, the “de facto†roots of the company in Italy since 2011 were appreciated.
The multinational group, operating all over the world as a virtual marketplace and provider of services for physical stores active in the sector of the sale of luxury clothing and accessories (boutiques), was one of the first to move into the online clothing trade sector, high fashion brand (luxury fashion), revolutionizing the world of retail through the winning strategy of integration between channels, so as to reach customers in over 190 countries around the world.
The entrepreneurial vision of the brand founder and the efficient organizational architecture - deployed on the Italian territory through qualified agents and operating in home office mode - have determined the sudden expansion in the domestic market of the marketplace which, today, has a portfolio of over 200 affiliated partners of the highest profile, all located in the most renowned shopping streets and structured in such a way as to compose a sort of virtual network of warehouses, to be identified in the individual boutiques.
In particular, the foreign company, without ever formalizing its presence in Italy, formally hiring employees and setting up offices and / or shops, operated, in an absolutely hidden way, taking advantage of the affiliated boutiques which, assuming all risks, made available physical spaces for the storage of goods to be sold "indirectly" on the platform.
The investigations were conducted with the aid of the databases used by the Corps and innovative forensic backup software and research and investigative analysis of the contents of the IT media found following home and local searches carried out with the support of qualified technical personnel.
In particular, over 400 gigabytes of data were sifted through, including 21,000 emails, 20,000 chat conversations, 800,000 images, 22,000 text files and metadata through which it was possible, among other things, to proceed the georeferencing of the subjects and reconstruct the relationships between them.
By way of example, by documenting the date and place of access to the various accounts (social, email accounts) in use by employees, as well as to the wi-fi networks, the movements were reconstructed with precision and the usual workplaces identified with accuracy.
The investigations also made use of the well-established channels of international cooperation.
Thanks to the investigative tools put in place, it was possible to ascertain that a team composed of Italian agents had carried out crucial activities for the management of economic-commercial relations, negotiation, negotiation and stipulation of contracts with hundreds of national boutiques.
In the face of the online sales management services of the products present in physical stores, the marketplace (similar to a real virtual showcase) collected large commissions from the Italian partners calculated, on average, on 30% of sales.
The company, in recognizing the overall structure of the disputes and, in any case, in a climate of maximum collaboration, has already paid to the tax authorities, in a single solution, about 12 million euros to settle each pending with the tax authorities for the years from 2015 to 2019.
At the same time, it undertook - through the establishment of a new company under Italian law - to pay taxes, including future taxes, due on commissions accrued in the area starting from 1 January 2020.
This is the first case, in Italy, of the ascertained existence of a hidden permanent establishment of a foreign company operating in the e-commerce sector whose fixed place of business has been identified in the home of the employees (home office).
It is undoubtedly an important evolution of the discipline of the building, which is part of a broader process of structural, regulatory and jurisprudential change, still in progress.
The conclusions reached, in harmony, by the Guardia di Finanza, the Financial Administration, the Judiciary and the taxpayer, led to considering the home of a person, under certain conditions, "available" to the foreign company.
Consequently, the “home officeâ€, today, can legitimately be considered a stable material organization of the foreign subject in the territory of the State in which the actual business activity takes place, thereby producing taxable income in Italy.
The issue takes on even greater importance when considering the progressive affirmation of the now well-known internet economy and of the so-called "digital multinational companies", whose intangible components make it possible to move more easily (as well as quickly) risks, functions, assets and, consequently, profits.
The activity testifies to the commitment of the institutions - the Judiciary, the Finance Police, the Revenue Agency - to achieve compliance with fiscal discipline, thus indirectly guaranteeing the freedom of the enterprise but in compliance with the rules on taxation, in interest of the community and free economic competition. ■