Commentary on Piedmont Regional Tax Commission n. 216\/2020 \u2013 by Elisabetta Smaniotto
The first home tax relief, in the case of transfer due to death, can be requested at the time of the presentation of the inheritance declaration, by declaring that the requirements for the tax benefit exist for at least one heir, without identifying the beneficiary immediately, but instead identifying them at a later time.<\/p>\n\n
Supporting this thesis, the Revenue Agency, which was called upon to handle the different case of granting tax benefits for the transfer of real estate in areas subject to detailed urban planning (Article 33, paragraph 3, Law No. 388 of December 23, 2000), highlighted that \u201cwhen the legislator has intended to make access to a favorable treatment subject to particular formalities to be completed under penalty of forfeiture, it has expressly stated so\u201d (Resolution No. 40\/E\/2013), and in the specific case being examined, there is no legislative reference to the deadline for identifying the beneficiary of the benefit, under penalty of forfeiture. This was clarified by the Regional Tax Commission of Piedmont in judgment No. 216\/7\/2020 of February 13, 2020; there are no precedents on this issue.<\/p>\n\n
The concrete case concerned the notice of assessment notified to a taxpayer \u2013 for forfeiture of the first home benefit \u2013 with which the Tax Office sought to collect a higher mortgage and land registry tax, plus accessories and penalties, in relation to the inheritance due to the death of the spouse, to whom, besides the taxpayer, the two minor children were also called.<\/p>\n\n
At the time of presenting the inheritance declaration to the Tax Office, the taxpayer, with reference to the property ownership of a real estate asset part of the inherited estate, had requested the application of the tax benefits provided for the purchase of the first home, even though he was already the owner of another property purchased with the tax benefit. As a result, the Tax Office issued the notice of assessment, since the requirement of not owning another property was missing, or the absence of any commitment by the taxpayer to declare his intention to dispose of the pre-owned house within a year (a condition that justifies the request for the first home benefit: paragraph 4-bis of Note II-bis under Article 1, TP1).<\/p>\n\n
The taxpayer, however, had taken action by requesting the annulment of the notice of assessment through self-protection (appeal to which he attached the substitute declarations of notoriety from the children in which they stated their intention to benefit from the tax relief), on the basis of the presence of three heirs, i.e., the two minor children who were also called to the succession. According to the taxpayer, the notice of assessment, lacking adequate justification, should have motivated the revocation of the tax relief also with regard to the non-possession of the requirements by the children, who instead would have had full right to benefit from the relief<\/p>\n\n
The tax court of first instance (CTP Turin, judgment No. 267\/4\/19 of February 11, 2019) and second instance (CTR Piedmont, judgment No. 216\/7\/2020 of February 13, 2020), agreeing with the appellant\u2019s observations, argued that the reliefs had been revoked based on a purely formal reason, which was the failure to declare, at the time of presenting the inheritance declaration, the intention to apply for the first home relief in the interest of the minor children.<\/p>\n\n
The regulation on first home benefits, for inheritance and donation taxes (Article 69, Law No. 342 of November 21, 2000), refers to Note II-bis attached to the TUR (Presidential Decree No. 131\/1986) and establishes that in order to benefit from first home relief, the required declarations must be made, including \u201cnot being the owner, even in shares, even under the legal community regime, of property rights, usufruct, use, habitation, and bare ownership on another residential home purchased by the same person or by the spouse with the benefits provided by this article.\u201d Moreover, Article 69, paragraph 3, Law No. 342 of November 21, 2000, generically provides that the relief applies when \u201cthe beneficiary, or, in the case of multiple beneficiaries, at least one of them, meets the requirements and conditions established for the purchase of the first home\u201d (as per Article 1, TP1, TUR).<\/p>\n\n
Although the document stated \u201cfirst home, not luxury, for at least one heir,\u201d according to the Tax Office, this expression could not be considered sufficient to qualify the intention to request the first home benefit for one of the children, and it was clear that the taxpayer intended to request the benefit for himself.<\/p>\n\n
The tax administration further:<\/p>\n\n
However, these exceptions were not shared by the tax court.<\/p>\n\n
The ruling of the Regional Tax Commission of Piedmont deserves to be noted because it introduces an interpretative innovation in the context of a well-established area such as the ‘first home’ tax relief. As such, in the coming months, it will be seen whether the principle raised will gain the consensus of the jurisprudence or if it will remain an isolated precedent.<\/p>\n\n
The novelty lies in the fact that the tax judges considered it legitimate to separate the moment of requesting the first home relief from the moment the beneficiary is identified, based on the assumption that at the time of the request, at least one of the heirs, in theory, meets the requirements set by law to benefit from the tax relief.<\/p>\n\n
Well, if in the coming months the position of the Piedmont court is followed, the cases of forfeiture or revocation of the first home relief due to the lack of the legal requirements will be confined to rare instances, considering that at the time of the purchase, it would no longer be necessary to identify the beneficiary of the relief, as a time extension sine die is granted to do so.<\/p>\n\n
The regulation regarding the ‘first home’ tax relief is outlined:<\/p>\n\n
The rationale behind this regulation lies in the legislator’s intention to facilitate the purchase of a primary residence, as a basic necessity, and as such, it is subject to significantly lower taxes compared to the purchase of other properties.<\/p>\n\n
Precisely because of the welfare purpose on which the regulation is based, the legislator has conditioned the tax benefit on a series of conditions existing at the time of purchase, or to be achieved within a very short period (usually twelve or eighteen months), under penalty of forfeiture<\/p>\n\n
Note II-bis sets the conditions that must be met to benefit from the first home tax relief, and among these, it is required that the taxpayer declares that they “are not the owner, even in shares, even under the legal community regime, anywhere in Italy, of property rights, usufruct, use, habitation, and bare ownership on another residential property purchased by the same person or by the spouse with the benefits” provided.<\/p>\n\n
This requirement of non-possession can arise even after one year from the purchase, provided that the buyer commits, in the purchase deed, to dispose of the previously owned house within one year from the new purchase benefiting from the relief (paragraph 4-bis, Note II-bis at the end of Article 1, TP1, TUR).<\/p>\n\n
The tax judges found that if the identity of the beneficiary child of the first home relief is not explicitly stated in the original inheritance declaration, the relief would still apply on the mere assumption that the legal requirements are met by the heirs other than the spouse (including the child).<\/p>\n\n
The CTR (Regional Tax Commission) argued this position based on the wording of Article 69, paragraph 3, Law No. 342 of November 21, 2000, which generically states that the first home relief is due when “the beneficiary, or in the case of multiple beneficiaries, at least one of them, meets the requirements and conditions provided for the purchase of the first home” (as per Article 1, TP1, TUR).<\/p>\n\n
In essence, the expression “in the case of at least one of them” (beneficiaries) would be sufficient to allow the request for the relief without needing to identify the beneficiary at the time of the request.<\/p>\n\n
Furthermore, to support the erroneous notification of the assessment notice, the judges also referenced a procedural document in which the Tax Office highlighted the absence of any rule establishing a deadline by which the final beneficiary must be identified: cases of forfeiture from the ‘first home relief’ are in fact set and typified by the legislator, so they cannot be extended to other cases (Resolution 40E of June 27, 2013).<\/p>\n\n
The position of the tax judges can be further supported by administrative practice rulings (Circular 38\/E\/2005, \u00a7 9 and Resolution 110\/E\/2006) that allow for the use of the relief by making the necessary declarations in a supplementary deed.<\/p>\n\n
In conclusion, one may wonder whether the principle established in this case, related to an inheritance due to death, can be extended to the request for relief for inter vivos acts.<\/p>\n\n
In this case, it seems that the moment of requesting the first home relief and the moment of designating the beneficiary cannot easily be separated (i.e., they cannot be different), as it is at the moment the deed is registered that the formalities are carried out with the public offices and the related taxes are paid. It is at this moment that the beneficiary of the first home relief must be identified, if requested.<\/p>\n\n
The principle set by the Piedmont Court might likely apply in that residual category of inter vivos acts characterized by the deferment of effects: think of conditionally suspended sales, for example.<\/p>\n\n
In any case, the identification of the beneficiary must occur within a fairly short time frame, as the requirement for subjective certainty is an essential requirement for benefiting from the tax relief. In this regard, a ruling by the Court of Cassation (February 27, 2020, No. 5349) can be cited, which, in relation to the transfer of a property with an execution judgment in specific performance (Article 2932 of the Civil Code), clarified that the declarations required by Article 1, Note II-bis, TP1, attached to Presidential Decree No. 131 of 1986, can be made, where a public deed of sale is missing, at the time of the request for registration of the judgment and in the form referred to in Article 47 of Presidential Decree No. 445 of 2000. The substitute declaration of notoriety is considered adequate to guarantee its certainty regarding its content and its subjectivity regarding the author.<\/p>\n\n
By Elisabetta Smaniotto \u2013 Lawyer in Bologna<\/p>\n","protected":false},"excerpt":{"rendered":"
Commentary on Piedmont Regional Tax Commission n. 216\/2020 \u2013 by Elisabetta SmaniottoIn https:\/\/www.fiscalitapatrimoniale.info\/post\/prima-casa-e-successione-mortis-causa The case and the legal principle The first home tax relief, in the case of transfer due to death, can be requested at the time of the presentation of the inheritance declaration, by declaring that the requirements for the tax benefit exist […]<\/p>\n","protected":false},"author":1,"featured_media":3709,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23],"tags":[21,22],"class_list":["post-3708","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-real-estate","tag-inheritance","tag-taxation"],"_links":{"self":[{"href":"https:\/\/notaiopadova.it\/en\/wp-json\/wp\/v2\/posts\/3708","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/notaiopadova.it\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/notaiopadova.it\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/notaiopadova.it\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/notaiopadova.it\/en\/wp-json\/wp\/v2\/comments?post=3708"}],"version-history":[{"count":1,"href":"https:\/\/notaiopadova.it\/en\/wp-json\/wp\/v2\/posts\/3708\/revisions"}],"predecessor-version":[{"id":3710,"href":"https:\/\/notaiopadova.it\/en\/wp-json\/wp\/v2\/posts\/3708\/revisions\/3710"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/notaiopadova.it\/en\/wp-json\/wp\/v2\/media\/3709"}],"wp:attachment":[{"href":"https:\/\/notaiopadova.it\/en\/wp-json\/wp\/v2\/media?parent=3708"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/notaiopadova.it\/en\/wp-json\/wp\/v2\/categories?post=3708"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/notaiopadova.it\/en\/wp-json\/wp\/v2\/tags?post=3708"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}