Setting up a company, as the Court today is an intangible asset that is integral to the company itself, and is inseparable from another of the intangible asset itself or its customers. Starting and score can not be separated, nor have there own independent to each other. Starting and score, though inseparable, are two separate entities.
Goodwill is essentially a concept that is used to represent the fact that the company has a capacity to produce income over time and especially those that generate income gains than ordinary ones. The utili superiori a quelli ordinari, tecnicamente prendono il nome di “extra profitti”. In pratica l’avviamento porta dentro di sé il concetto di potenzialità, perché è un indice che rappresenta il potenziale dell’azienda nel produrre redditi ed extra profitti in futuro.
Tale capacità è dovuta al fatto che l’azienda è un “sistema” di fattori che tendono ad un obiettivo, dove per sistema si intende un insieme “organizzato”. Organizzazione si riferisce al fatto che i fattori che compongo l’azienda sono tra loro collegati ed interdipendenti perché esistono delle relazioni ben precise tra di essi. E’ proprio l’organizzazione dei fattori che permette (Or should allow) to get profits above those that would generate income by putting on the market factors at the individual rate of return today.
who acquires a company, to the transferor recognizes the value of goodwill, that is, pay compensation for the fact that the company has a set of intangible factors that are configured as technically the potential to generate revenue and profits. For a company acquired goodwill in this case is "derivative" because it is transferred for consideration from the old to the new property company founded
To start from scratch instead it says "created" because it is the consequence an efficient business management.
The estimate of goodwill of a company must also take into account the fact that it is important to distinguish between subjective starter and starter objective depending on whether or not it is determined by the personal characteristics of the entrepreneur . The subjective part of the goodwill is not transferable in an operation to buy / sell business.
to be transferred is instead the objective part of the goodwill ie those not dependent on the quality of the entrepreneur, but more specifically by:
-
trademarks
- patents
- know how
- commercial network
- market presence
- customer base
- etc.
fiscal aspects of the evaluation of goodwill
From a fiscal point of view, we must point out that the goodwill, if detected, is not subject to tax itself but as a component of ' company which has helped to create the value, in other words, goodwill is of taxation in a company if the cumulative capital gains are realized. Now let's do an example: we talk about the transfer of undertakings.
The Finance Ministry is entitled to proceed by induction to the establishment of income from capital gains on the value of goodwill, realized on the sale of the company, on the basis of a statement of value made in the application of the tax register, and it is the taxpayer's burden of proof to overcome (even with use of circumstantial evidence) the presumption of correspondence in the price received by the market value definitively established in the application of registration, and showed that sold specifically for price inferiore.
La Cassazione (sentenza n. 19830 del 18 luglio 2008) conferma, dunque, la possibilità per l'Amministrazione Finanziaria di procedere, in tali circostanze, in "via induttiva".
Nella prassi professionale, si pone quindi per il contribuente il problema di determinare un valore di avviamento che possa essere ritenuto congruo da un punto di vista fiscale.
Spesso, in ottica prudenziale, si fanno coincidere le valutazioni aziendali con le valutazioni dell’ amministrazione finanziaria.
Nel caso non coincidano è comunque opportuno esporre le cause e le ragioni che hanno portato ad attribuire il valore di avviamento dichiarato.
L’Amministrazione Finanziaria ha infatti il potere di “dimostrare infidelity "than to the parties about the value of goodwill.
Goodwill is determined by the office, when corrected, taking the average of the income stated or inferred from the accounts for 2 or 3 years (sometimes for a higher number depending on seniority and the location of the company) . Another method is the capitalization at a certain rate last declared income, but is rarely applied.
These empirical methods of assessment, to be considered arbitrary, but found widespread adoption in the calculation system for ease of application, easily adopted even by those who have lack of familiarity with the changing business reality and prefer to use standardized computing solutions.
standard criteria of goodwill have been introduced by Presidential Decree 460 31/07/1996, pi replaced by Decree Law No. 218 of 19/06/1997.
The Court has ruled in several ways, however, showed a preference for the policy of capitalization of income, but not excluding that we should consider evaluations that take into account the specificities of companies considered from the perspective of many variables such as the local situation of the location where the business is located, or relationships with suppliers, customers, employees etc.. The capitalization of the last
Income is an entity that is conceptually different from the total value of the company. Consequently, the capitalization of income tax is not acceptable for the determination of value.
In the case of transfer of business, once established costs and made the necessary deductions, the taxable capital gain is configured as the difference between the correct tax pursuant to art. 86 of Presidential Decree No. 917/86 and the transfer value of the company. In the absence of the tax value defined, is starting and then gain all the value that remains beyond the documented costs.
The value of goodwill, whether considered from the point of view of direct taxes than log, (the tax base date from the declared value or consideration agreed by the parties) is controlled by the tax authorities with respect to the total value of goods that make up the company, thus including goodwill, net of liabilities resulting from records or documents having a certain date.
shall not be held to taxation of goodwill when, during the transfer by the company ceases to exist. This is because the legal concept of goodwill is configured only if, the change in the person of the entrepreneur, the company continues its economic activity.
