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LED Taxand summarizes hereinafter the main tax news regarding Italian real estate for the first quarter of the year 2019.

 

Case Law – Joint Session of the Italian Supreme Court Judgment No. 6882 dated 8 March 2019: validity of a lease agreement where taxes relating to the leased assets are borne by the tenant

The Italian Supreme Court confirmed the validity of a lease agreement according to which taxes due by the landlord relating to the leased assets (e.g. real estate taxes as IMU) and to the  agreement itself are borne by the tenant. The Court specified that the landlord, as taxable person, shall pay such taxes but he can recharge, as a part of the rental fee, an amount equal to the taxes paid to the tenant.

 

Italian Revenue Agency’s guidelines – Reply to Tax ruling No. 13 of 29 January 2019: the transfer of a going concern followed by the sale of the shares is not abusive also for transfer taxes purposes

With reference to transfer taxes, the Revenue Agency clarified that the behaviour of those taxpayers who, even motivated by the purpose of minimizing their tax burden, choose to transfer a going concern through its contribution or demerger into a special purpose vehicle (transaction subject to a fixed registration tax) followed by the sale of the company’s shares (transaction   subject to a fixed registration tax) instead of the direct sale of the going concern (transaction  subject to a proportional registration tax) is not abusive.

However, the Revenue Agency specified that the transaction qualifies as abusive if, following the sale of the company’s shares, the purchased company is merged into the purchasing entity (transaction subject to a fixed registration tax). In this case, in fact, the aim to acquire directly the going concern is clear.

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Italian Revenue Agency’s guidelines – Reply to Tax ruling No. 65 of 20 February 2019: territorial relevance for VAT purposes of services rendered to real estate funds

With reference to the territorial relevance for VAT purposes of the services provided to real estate investment funds, the Revenue Agency clarified the following.

The assistance services in relation to the opportunities for acquisition/sale of real estate assets are not considered as services connected with immovable property since they qualify as services consisting in the “portfolio management of investments in real estate” pursuant to Art. 31a, paragraph 3, letter g, of the Regulation No. 282/2011. Therefore, if such services are provided by an Italian company to an asset management company established in another EU member State, they are not territorially relevant in Italy for VAT purposes under Art. 7-ter of the Presidential    Decree No. 633/1972.

Administration and management services relating to real estate assets included in a portfolio are considered as services connected with immovable property since they qualify as services consisting in the “property management other than portfolio management of investments in real estate” pursuant to Art. 31a, paragraph 2, letter o, of the Regulation No. 282/2011. Therefore, if such services are provided by an Italian company to an asset management company established in another EU member State with reference to real estate assets located in Italy, they are territorially relevant for VAT purposes in Italy under Art. 7-quater, paragraph 1, letter a, of the Presidential Decree No. 633/1972.

 

Italian Revenue Agency’s guidelines – Reply to Tax ruling No. 68 of 20 February 2019: the dormant companies’ rules are not applicable if the rental fee is consistent with the OMI  values

The Revenue Agency confirmed that a company is not subject to the dormant companies’ rules (Art. 30 of the Law No. 724/1994) if it applies rental fees which, although not allowing the fulfilment of the so called “vitality test”, are in line with the values included in the tax authorities’ real estate market database (OMI).

 

Italian Revenue Agency’s guidelines – Hearing of the Director of the Revenue Agency of 20 March 2019: assessment of the cadastral value for tax purposes

During the mentioned hearing, the Director of the Revenue Agency reported on the assessment activity regarding cadastral values proposed by the professional technicians for the new registrations in the real estate cadastre or for declarations of variation of the cadastral value.  Since cadastral values are taken into consideration for the calculation of the taxable base of different taxes (e.g. IMU, TASI, registration tax in case of application of the so called “prezzo valore” principle and inheritance and gift taxes), these assessments also affect the real estate taxation.

 

For further information please write to your LED Taxand contact, gpetraroli@led-taxand.it or jpbaroni@led-taxand.it 

 

 

DISCLAIMER

The information provided in this newsletter cannot be regarded as legal advice. LED Taxand cannot accept any liability for the consequences of making use of this publication without their cooperation.

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