{"id":1758,"date":"2020-01-20T10:29:23","date_gmt":"2020-01-20T09:29:23","guid":{"rendered":"http:\/\/www.creativecompany.it\/gslex\/?p=1758"},"modified":"2022-12-15T10:09:47","modified_gmt":"2022-12-15T09:09:47","slug":"le-onlus-alla-luce-della-riforma-ets-o-imprese-sociali","status":"publish","type":"post","link":"https:\/\/gslex.net\/en\/articoli\/le-onlus-alla-luce-della-riforma-ets-o-imprese-sociali\/","title":{"rendered":"FURTHER INFORMATION \u2013 Non-profit organizations in the light of the Reform: ETS or Social Enterprises?"},"content":{"rendered":"

In implementation of the law n. 106\/2016 (Delegation to the Government for the reform of the third sector, of the social enterprise and for the regulation of the universal civil service) were issued, among others, the legislative decree n. 112\/2017 concerning the revision of the regulations on social enterprise and the legislative decree n. 117\/2017 better known as the Third Sector Code.<\/p>\n

Among the main innovations of the Reform, the importance of the introduction of the definition, pursuant to article 4 of Legislative Decree no. 117\/2017, of Third Sector Entities (ETS) and of the Single National Register of the Third Sector (RUNTS) and the simultaneous elimination of the Onlus from the regulatory landscape starting from the term referred to in Article 104, paragraph 2, of the Legislative Decree n. 117\/2017 or \"starting from the tax period following the authorization of the European Commission ... and, in any case, not before the following tax period of operation\" of the RUNTS, not yet established.<\/p>\n

The Reform of the Third Sector also requires non-profit organizations to amend the statute to make it compliant with the new legislation which, we recall, no longer includes the category of Non-Profit Organizations of Social Utility. Therefore, they will have to register with a specific application in one of the sections of the RUNTS: a) Volunteer organisations; b) Associations for social promotion; c) Philanthropic organizations; d) Social enterprises; e) Association networks; f) Mutual aid society; g) Other third sector entities.<\/p>\n

With the exception of associative networks, no institution can be simultaneously registered in more than one section.<\/p>\n

In addition to the RUNTS, the Third Sector Entities (ETS) that carry out their activity exclusively or mainly in the form of a commercial enterprise are subject to the obligation of registration in the commercial register. The distinction between non-commercial ETS and commercial ETS is relevant for the purposes of applying the preferential tax regime for the former (for the distinction, see article 79 of Legislative Decree no. 117\/2017).<\/p>\n

For social enterprises, registration in the appropriate section of the business register is sufficient. In this regard, it should be remembered that all private entities can acquire the status of Social Enterprise which, in compliance with the provisions of Legislative Decree no. 112\/2017, carry out a business activity of general interest on a stable and principal basis.<\/p>\n

Gli enti iscritti al RUNTS possono beneficiare del cinque per 1000 (articolo 3 d.lgs. n. 111\/2017).<\/p>\n

It is essential not to take for granted the correct positioning within the various sections of the RUNTS on which each non-profit organization must carry out an accurate and in-depth reflection. For example, a non-profit organization established in the form of an association which mainly makes use of voluntary associates could register in the section of \"Volunteer organisations\" benefiting from the more favorable tax treatment reserved for these entities (flat-rate taxation of income deriving from any activities carried out with commercial methods , with reduced rates of 1% and 3%). In particular, the non-profit organizations that carry out institutional activities of a commercial nature will have to ascertain whether it is more convenient for tax purposes to become another entity in the commercial third sector or social enterprise, in consideration of the fact that the decommercialisation referred to in article 12 of the legislative decree will no longer operate n. 460\/1997 and that article 18 of Legislative Decree no. 112\/2017 provides for the tax reduction of profits reinvested in activities of general interest for social enterprises.<\/p>\n

DEADLINE FOR ADJUSTMENT AND SHAREHOLDERS' MEETING QUORUM.<\/strong><\/p>\n

Pursuant to the Circular of the Ministry of Labor n. 20 of 27 December 2018, by 30 June 2020, non-profit organizations can \"amend their statutes with the methods and majorities envisaged for the resolutions of the ordinary shareholders' meeting in order to adapt them to the new mandatory provisions or to introduce clauses that exclude the application of new derogable provisions\". In order to introduce new optional rules, however, an extraordinary shareholders' meeting is required; from 1 July 2020 and until the final abolition of the non-profit registry, changes (of any kind) are made using the extraordinary assembly, without simplified majorities.<\/p>\n

Any devolution of assets should, therefore, only trigger with the loss of the status of non-profit organization and the definitive abrogation of the related regime without the previous or simultaneous registration with RUNTS.<\/p>\n

The subsequent Circular of the Ministry of Labor n. 13 of 31 May 2019 then specified that for entities with legal personality under private law pursuant to Presidential Decree no. 361\/2000, the procedure envisaged therein for the approval of the statutory amendments does not necessarily have to be completed by the deadline of 30 June 2020.<\/p>\n

TAX DISCIPLINE IN THE TRANSITIONAL PERIOD.<\/strong><\/p>\n

According to the Resolution n. 89\/E\/2019 of the Revenue Agency, an entity registered in the Registry of Onlus can continue to apply the tax provisions descending from Legislative Decree no. 460\/1997, provided that he is in possession of the formal and substantive requirements set out in the aforementioned decree, even if he does not proceed to adapt the statute by 30 June 2020 and may do so up to the deadline referred to in paragraph 2, of article 104 of Legislative Decree no. 117\/2017 or until the tax period following the authorization of the European Commission pursuant to article 101, paragraph 10, of Legislative Decree no. 117\/2017.<\/p>\n

Pursuant to article 4 of Legislative Decree no. 117\/2017, Third sector entities are \"voluntary organisations, social promotion associations, philanthropic entities, social enterprises, including social cooperatives, associative networks, mutual aid societies [TYPICAL ENTITIES], associations , recognized or unrecognised, foundations and other private entities other than companies [ATYPICAL ENTITIES] set up for the non-profit pursuit of civic, solidarity and social utility purposes by carrying out one or more general interest in the form of voluntary action or the free provision of money, goods or services, or mutual aid or the production or exchange of goods or services, and registered in the single national register of the Third sector\".<\/p>\n

TYPES OF RULES OF THE THIRD SECTOR CODE SUBJECT TO ADJUSTMENT.<\/strong><\/p>\n

The Circular of the Ministry of Labor n. 20 of 27 December 2019 distinguishes:<\/p>\n

a) mandatory rules;<\/p>\n

b) rules that can be derogated from through an express statutory provision (\"unless the statute provides otherwise\");<\/p>\n

c) rules that attribute mere faculties to statutory autonomy (\"if the statute permits it\").<\/p>\n

Only for a) and b) it is possible to proceed with the methods and quorums of the ordinary shareholders' meeting provided that by 30 June 2020.<\/p>\n

NAME.<\/strong><\/p>\n

A particularly delicate aspect concerns the company name and its use: non-profit organizations (unless they acquire a typical qualification: voluntary organisation, social promotion association, philanthropic body, social enterprise) must enter the acronym \u00abETS\u00bb but will only be able to use it when will have registered for RUNTS, therefore it is necessary to insert a conditional suspension clause.<\/p>\n

PURPOSE AND ACTIVITY.<\/strong><\/p>\n

The aims pursued must be specified in the new statute. Also the indication of the activities of general interest constitutes mandatory content of the statute: to this end, needs of clarity and transparency require an immediate link between them and those listed in the Third sector Code through the reproduction of the cases indicated therein also with reference to the corresponding letter of article 5 paragraph 1, letters from a) to z) of Legislative Decree no. 117\/2017. In the same perspective, it is appropriate to provide further specifications regarding the contents of the activities.<\/p>\n

The exercise of different activities is optional; however, if the entity intends to exercise them, the conditions set out in article 6 of Legislative Decree no. 117\/2017.<\/p>\n

CORPORATE BODIES.<\/strong><\/p>\n

The statutory provisions must distinguish between the ordinary and extraordinary shareholders' meetings (articles 24 and 25 of Legislative Decree no. 117\/20177) and must identify the quorums for the validity of the sessions, the majorities (simple or qualified) required and the matters they are remitted In the absence of specific provisions, article 21 of the civil code is applicable.<\/p>\n

Given the mandatory nature of the Governing \/ Administrative Council (Article 26 of Legislative Decree No. 117\/2017), the statute must regulate the methods of constitution, the functions and, in the case of a collegial body, must establish the operating rules ( quorum for the meetings and any qualified majorities) or to request their setting in a specific regulation. The control body and the auditor are mandatory only in foundations and associations that exceed the thresholds respectively referred to in articles 30 and 31 of Legislative Decree no. 117\/2017.<\/p>\n

OTHER MANDATORY RULES.<\/strong><\/p>\n

In addition to the contents referred to in article 21 of Legislative Decree no. 117\/2017, compliance of the statute with various provisions of the Third Sector Code is mandatory.<\/p>\n

The absence of the lucrative purpose constitutes a characterizing element: it follows that the statute must comply with the provisions regarding the allocation of the assets to the performance of the statutory activity and the prohibition of distribution, even indirectly, of profits. The devolution of assets in the event of extinction or dissolution is also mandatory. It is also necessary to indicate, among the powers of the corporate bodies, the preparation, approval and further fulfilments regarding the financial statements and the social budget (where mandatory pursuant to article 14 of Legislative Decree no. 117\/2017). The right of the shareholders to examine the corporate books must be declined through the provision of the methods of exercise of the same. Articles 17 and 18 of Legislative Decree no. 117\/2017 on volunteers are immediately applicable without interventions on the statute but any provisions that do not comply with them must be eliminated.<\/p>\n

TRANSITIONAL RULE IN THE STATUTES<\/strong><\/p>\n

The Revenue Agency (Telefisco 2018) specified that non-profit organizations are required to make the necessary adjustments to their bylaws, subjecting their effectiveness to the expiry of the term referred to in article 104, paragraph 2, of Legislative Decree no. 117\/2017 (tax period following the authorization of the European Commission and in any case not before the tax period following the RUNTS operation). At the same time, the same term must be connected, with an express statutory provision, to the cessation of effectiveness of the old statutory clauses made necessary by joining the Onlus regime but which have become incompatible with the supervening regulation of Third sector entities.<\/p>\n

In essence, on the basis of the aforementioned statutory amendments, starting from the term referred to in article 104, paragraph 2, of Legislative Decree no. 117\/2017, the Onlus clauses incompatible with the provisions of the Third Sector Code will cease to have effect and, at the same time, the compliant clauses will begin to take effect. Pending this term, the entities qualifying as non-profit organizations must continue to qualify as such and use the term \"non-profit organization of social utility\" or the acronym non-profit organization in the name and in any distinctive sign or communication addressed to the public. The assumption of the new company name of Ets, inserted in the statute, however, will be subject to the suspension of registration in the single national register of the third sector. From that moment on, the indication of a third sector entity or the acronym ETS will be used in deeds, correspondence and communications to the public https:\/\/www.fiscooggi.it\/rubrica\/analisi-e-commenti\/articolo\/telefisco-e-terzo-settore-chiarimenti-dellagenzia<\/a><\/p>\n

WHY BECOME A SOCIAL ENTERPRISE.<\/strong><\/p>\n

In a general and abstract way, it can be argued that the non-profit organizations that carry out institutional activities of a commercial nature will have to ascertain whether it is more convenient for tax purposes to become a social enterprise, in consideration of the fact that the decommercialization referred to in article 12 of Legislative Decree will no longer operate. no. 460\/1997 and that article 18 of Legislative Decree no. 112\/2017 provides for the detaxation of profits reinvested in activities of general interest for Social Enterprises.<\/p>\n

THE NEW REGULATION OF THE SOCIAL ENTERPRISE<\/strong> entered into force following the enactment of the legislative decree n. 112\/2017, which repealed the previous legislative decree n. 155\/2006. With the new regulation, the legislator intended to encourage this model by providing for forms of tax relief on profits, introducing the possibility of accessing forms of risk capital collection through telematic portals (as for innovative start-ups) and adopting facilitating measures aimed at favoring capital investments. However, the effectiveness of the tax provisions is subject to the authorization of the European Commission which must verify their compliance with the legislation on state aid.<\/p>\n

BUSINESS ACTIVITIES OF GENERAL INTEREST.<\/strong><\/p>\n

Pursuant to article 1 of the legislative decree n. 112\/2017 can acquire the status of social enterprise pursuant to all private entities, including companies, which, in accordance with the provisions of Legislative Decree lgs. no. 112\/2017 exercise on a stable and principal basis (the relative revenues are higher than 70% of the total revenues) a business activity of general interest, non-profit and for civic, solidarity and social utility purposes, adopting methods of accountable and transparent management and encouraging the broadest involvement of workers, users and other subjects interested in their activities. Activities of general interest are considered, if carried out in compliance with the particular rules governing their exercise, the business activities concerning (article 2 of Legislative Decree no. 112\/2017): social services; health and social-health services; education, training and vocational training as well as cultural activities of social interest with an educational purpose; preservation and improvement of environmental conditions; protection and enhancement of the cultural heritage and the landscape; university and post-graduate education; scientific research of particular social interest; organization and management of cultural, artistic or recreational activities of social interest, including activities, including publishing, to promote and disseminate the culture and practice of volunteering and activities of general interest; community radio broadcasting; tourist activities and activities of social, cultural or religious interest; extra-curricular training aimed at preventing early school leaving, at school and training success, at preventing bullying and at combating educational poverty; instrumental services to social enterprises or other third sector entities rendered by entities made up of at least 70% social enterprises or other third sector entities; fair trade; (re)integration into the labor market of particular subjective categories (e.g. disabled) according to specific legislation; social housing; humanitarian reception and social integration of migrants; microcredit; social farming; amateur sports activities; redevelopment of unused public assets or assets confiscated from organized crime. Regardless of its object, an activity of general interest is considered to be the business activity in which, for the pursuit of civic, solidarity and social utility purposes, no less than 30% of the subjective categories defined by specific legislation are employed.<\/p>\n

PARTIAL DISTRIBUTABILITY OF PROFITS.<\/strong><\/p>\n

Another reason that could lead a non-profit organization to opt for the Social Enterprise form is linked to a novelty brought about by the recent reform: the allocation of profits and operating surpluses to carrying out the statutory activity or to increasing assets admits exceptions referred to in article 3 of Legislative Decree no. 112\/2017.<\/p>\n

MODIFICATION OF THE STATUTE.<\/strong><\/p>\n

The deed of incorporation of the social enterprise must have the form of a public deed, therefore the non-profit organizations that intend to acquire the relative qualification must amend their statute with a notarial deed.<\/p>\n

In addition to what is specifically provided for each type of organization (association, foundation, etc.) according to the legislation applicable to each of them, the social nature of the company must be made explicit in the new statute, indicating in particular: a) the corporate object, with particular reference to the provisions of article 2 of Legislative Decree no. 112\/2017; b) the absence of profit, referred to in article 3 of Legislative Decree no. 112\/201; c) adequate forms of involvement of workers, users and other subjects directly interested in the activity. Involvement must be understood as \"a consultation or participation mechanism through which workers, users and other subjects directly interested in the activities are placed in a position to exercise influence on the decisions of the social enterprise, with particular reference to issues that directly affect the working conditions and the quality of goods or services\" (article 11 of Legislative Decree no. 112\/2017). The statute must in any case regulate: the cases and methods of participation of workers and users, also through their representatives, in the shareholders' meeting; the appointment, by the workers and possibly by the users, of at least one member of both the administrative body and the control body, if the social enterprise exceeds two of the limits referred to in article 11 of Legislative Decree no. .112\/2017.<\/p>\n

OTHER RELEVANT REGULATIONS TO CONSIDER<\/strong> in evaluating the transition to the discipline of the social enterprise are: the obligation of the social balance (article 9 of the legislative decree n. 112\/2017) and the obligation to appoint an internal control body (article 10 of the legislative decree . n. 112\/2017), which for other third sector entities are triggered only when certain thresholds are exceeded (respectively articles 14 and 30 of legislative decree n. 117\/2017).<\/p>\n

REGISTRATION IN THE REGISTER OF COMPANIES.<\/strong><\/p>\n

Article 5, paragraph 2, of Legislative Decree no. 112\/2017 requires that the deeds of incorporation, their amendments and other deeds relating to the social enterprise be deposited within thirty days by the notary or the administrators at the office of the register of companies in whose district the registered office is established, for registration in the appropriate section.<\/p>\n<\/div><\/div><\/div><\/div><\/div>","protected":false},"excerpt":{"rendered":"

In-depth analysis on the transition to the Single National Register of the Third Sector of Onlus<\/p>","protected":false},"author":8,"featured_media":3956,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"inline_featured_image":false,"footnotes":""},"categories":[1,77],"tags":[],"class_list":["post-1758","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-articoli","category-terzo-settore"],"yoast_head":"\nAPPROFONDIMENTO - Le Onlus alla luce della Riforma: ETS o Imprese Sociali? - GSlex<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/gslex.net\/en\/articoli\/le-onlus-alla-luce-della-riforma-ets-o-imprese-sociali\/\" \/>\n<meta property=\"og:locale\" content=\"en_GB\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"APPROFONDIMENTO - Le Onlus alla luce della Riforma: ETS o Imprese Sociali? 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