Residenza delle società: il tendenzioso travisamento dei criteri OCSE sulla dialettica interna alla società e la loro applicazione alla dialettica società-socio

The authorities increasingly contest relocation abroad whenever there are foreign companies managed by controlling shareholders residing in Italy, based on a hasty assumption that company's residence always coincides with the shareholder's residence. This coincidence between company's residence is based on Pace of effective management, i.e. the place where the key management and commercial decisions that are necessary for the conduct of the entity's business are in substance made.However, the OCSE Tie-Break Rule has been elaborated with the purpose of resolving the dualism between different functions of the big industrial companies, multinational or supranational. The company management could not be confused with the shareholder's residence; in fact, the shareholder cannot anchor company's residence because his interference isn't strictly necessary for the functionality of the company. The tax authorities approach is illogical because it leads to the conclusion that companies performing every real economic activity like manufacturing companies, companies reselling to third parties or companies providing services, are resident in the shareholder's country. Tax authorities approach is obviously illogical since, in most case, the residence disputes concern hypothesis of companies without enterprise, like real estate companies or holdings, where enterprise is totally inexistent and the residence is can be only linked to the concept of "legal and institutional" residence.