The Italian Tax Authority, in Ruling No. 97/2026, clarifies the boundaries of the “commercial activity” requirement (Art. 87, par. 1, let. d, TUIR) for the Participation Exemption (PEX) regime within the energy infrastructure sector.
The Case: A holding company (Alfa S.r.l.) sold its shares in three SPVs (Beta 1,2,3) established just over a year prior for developing Battery Energy Storage Systems (BESS). The SPVs had acquired early-stage projects from a subsidiary (Gamma), transferred the permits, and reached “ready to build” status at the time of the sale.
The Ruling: The Agency denied the PEX benefit, finding the “commercial activity” requirement unfulfilled. Key takeaways:
- Preparatory Phase vs. Business Operations: While in the energy sector site-searching and planning can constitute the core business (Circular 7/E/2013), the company must perform an organic complex of activities.
- Lack of Operating Structure: In this case, the SPVs did not conceive the projects (purchased from Gamma) nor did they directly manage the development (outsourced to Delta via a framework agreement).
- Potential Capacity: At the time of the disposal, there was no evidence of an operating structure capable of meeting market demand within reasonable technical timeframes.
Key Takeaway: Merely taking over permits and reaching “ready to build” status through massive outsourcing does not automatically grant “commercial” status for tax purposes. Operational substance and the actual execution of development phases “in-house” remain critical factors for PEX eligibility.