By Guido Martinelli e Sarah Eusepi.
Roma, 8 Novembre 2024
1. Introduction
The taxation for registration tax purposes of deeds creating rights of superficies on agricultural land is an issue of great relevance and interest for the renewable energy sector, since it is a contractual arrangement widely used in the context of the construction of plants for production of electricity from wind and photovoltaic sources. Such contractual agreements indeed allow producers of energy from renewable (specifically wind or photovoltaic) sources to secure the availability of the agricultural areas and land on which such plants are generally installed (and at the same time the “bankability” of the projects themselves), without acquiring full ownership of such land.
For registration tax purposes, a deed creating a right of superficies falls within the “deeds subject to registration within a fixed deadline”, in relation to which Article 1, paragraph 1, of the Tariff, Part One, attached as Annex A to Presidential Decree No. 131/1986 (“T.U.R.”) provides as follows:
In respect of deeds creating rights of superficies on agricultural land in favour of persons other than farmers and professional agricultural entrepreneurs, Italian tax authorities have historically stated their subjection to proportional registration tax at the rate of 15%1, deeming such case comparable to the concept of “transfer” referred to in the third sentence of Article 1, paragraph 1, cited above2.
The approach expressed on this point by the tax administration had already been disregarded by the case law of the Italian Supreme Court, based on considerations aimed at highlighting the impossibility of endorsing, from a legal perspective, the assimilation proposed by the tax authorities.
More specifically, by decision No. 3461/2021, the Italian Supreme Court, ruling on the registration tax applying to a deed creating rights of superficies on agricultural land for the construction of a photovoltaic plant, stated that “From a plain reading of the provision [third sentence of Article 1 of the Tariff, Drafter’s note] it emerges that the same applies to the transfer and not to the “creation” of an in rem right of use”, outlining the impossibility of assimilating the two cases, since “the creation of a right of superficies on land by an assignor/creator is not regulated by the provisions applying to transfer deeds”, precisely because “a right of superficies is ‘created’, and not ‘transferred’".
Based on the above considerations, the Italian Supreme Court decided to endorse the approach previously expressed by judgment No. 16495/ 20033, issued in a case concerning the creation of easement rights, considering it “similar to the one under consideration for tax purposes” [creation of right of superficies, Drafter’s note]”, deeming also the case of creation of the right of superficies under consideration falling within the scope of the provision set out in the first sentence of paragraph 1 of Article 1 of the Tariff, Part One, with consequent application of proportional registration tax at the rate of 9%.
2. The Reply to application for a ruling No. 365/2023.
Notwithstanding the clear interpretative/operational criterion outlined by the Italian Supreme Court, with respect to the right of superficies the Tax Authorities - unlike in relation to the right of easement - maintained the “assimilation” thesis, reaffirming their position in their Reply to application for a ruling No. 365/2023.
In such document, with respect to the legal principle stated by the Italian Supreme Court by decision No. 3461/2021, cit. – referred to by the applying Notary in support of its interpretation – the Revenue Agency stated that the grounds expressed in such decision were not deemed prejudicial to its view since “although concerning a dispute regarding the taxation of a deed of creation of the right of superficies, the Italian Supreme Court expressly recalls previous rulings on the right of easement as well as the concept according to which “it does not entail the transfer of rights or faculties of the owner of the servient estate”, which, as pointed out, is peculiar to the right of easement as defined by Articles 1027 et seq. of the Italian Civil Code and not to other in rem rights of use”.
Based on the above considerations, the Agency therefore concluded that “the taxation principles set out in the aforementioned Circular No. 18/E of 2013, for registration tax purposes, are still deemed applicable. Therefore, the deed of creation of the right of superficies in respect of the agricultural land at issue is subject to registration tax at the rate of 15%, in addition to mortgage and cadastral taxes at the fixed rate of EUR 50 each”.
3. Decision of the Italian Supreme Court No. 27293/2024.
In its very recent decision No. 27293/2024, the Italian Supreme Court ruled again on the taxation for registration tax purposes of deeds creating rights of superficies on agricultural land4, confirming the application of the rate provided for by the first sentence of Article 1, paragraph 1, of the Tariff, Part One, attached as Annex A to Presidential Decree No. 131/1986 (namely, 8% pursuant to the text applicable ratione temporis to the case at issue and 9% according to the text currently in force).
Consistently with the position previously held, the Italian Supreme Court - recalling that “In both scenarios contemplated by Article 952 of the Italian Civil Code, there is a separation between the legal ownership of the land and that of the building (to be constructed or already existing) [which, Drafter’s note ) does not entail, however, a splitting of the legal ownership of the land, which [...] remains with the grantor” - reiterated that “by reason of the intrinsically temporary nature of the right, surface tenure must be considered a right ontologically different from fee simple interest” and the consequent need, for tax treatment purposes, to keep the transfer deeds distinct from those creating in rem rights of use, considering also that “when the legislator wanted to tax also the deeds creating said rights, it made express provisions in such regard5”.
In confirming its position, the Italian Supreme Court expressly stated that the guidelines provided by the tax authorities6, traditionally invoked by them in support of the payment notices issued in relation to such particular case, are not binding.
It appears significant that the Italian Supreme Court not only expressly referred to and confirmed the view already laid down in decision No. 3461/2021, but de facto considered it as well established.
Indeed, following the appeal lodged by the Attorney General's Office, the Deputy Counsellor proposed an accelerated settlement pursuant to Article 380-bis of the Italian Code of Civil Procedure, due to the manifest unfoundedness of the grounds of complaint, noting that "The word transfer contained in Article 1 of the Tariff attached to Presidential Decree No. 131 of 1986 was used by the lawmaker to indicate all those deeds providing for the transfer from one party to another of the ownership of real estate or the holding of in rem rights of use in real estate and cannot be referred to deeds creating in rem rights of use such as an easement, which does not entail the transfer of rights or faculties of the owner of the servient estate but the limitation of the latter's right of ownership to the benefit of a given dominant estate)".
The decision in question, therefore, further contradicts the position reiterated in the Reply to application for a ruling No. 365/2023 cited above, whereby the Tax Administration had reaffirmed the application of the 15% rate to deeds creating a right of superficies on agricultural land, notwithstanding the fact that the notary public drawing up the deed had made express reference to the principle established by decision No. 3461/2021 cited above.
Considering the full compliance of the decision with the proposal of the Deputy Counsellor, the losing Public Treasury was, inter alia, ordered not only to pay the “increased” litigation costs, but also to pay the further sums provided for by Article 96, paragraphs 3 and 4 of the Italian Code of Criminal Procedure, an element that may lead the Tax Administration to consider ceasing recourse to litigation, as occurred with respect to deeds of easement 7.
1 Resolution No. 92/E/2000, Circulars Nos. 18/E/2013 and 36/E/2013. According to the Agency’s view, although the third sentence of Article 1 cit., as is worded, limits the application of the 15% rate to deeds involving the “transfer” of agricultural land, lawmakers (allegedly) intended to assimilate the concept of “transfer” to the concept of “deed of transfer” or “deed transferring or creating in rem rights of use in real estate, so that the term “transfer” should be deemed to also cover the “deeds creating in rem rights of use in real estate” expressly mentioned in the first sentence of paragraph 1.
2 Conflicting with such view was the more recent Resolution No. 4/E of 15 January 2021, which, endorsing the view taken by the Italian Supreme Court of the point, stated that, for the purposes of the registration tax, a deed creating easement rights on agricultural land for persons other than farmers and agricultural entrepreneurs should fall within the scope of the general provision referred to in the first sentence of Article 1, paragraph 1, of the Tariff, Part One, declaring the indications contained in the former circulars de facto superseded. (Cass. judgment No. 16495/2003, conf. Cass. judgments Nos. 22198/2019, 22199/2019, 22200/2019 e 22201/2019, Cass. decisions 6671/2020, 6677/2020 and 22118/2020).
3 According to which "The term “transfer” contained in Presidential Decree No. 131 of 1986, Article 1, of the attached tariff was used by lawmakers to indicate all those deeds that involve the transfer of title to real estate or of in rem rights of use in real estate from one person to another and cannot be referred to deeds creating in rem rights of use such as right of easement, which does not involve the transfer or rights or faculties of the owner of the servient estate but the limitation of its ownership right in favour of a certain estate (dominant estate)"
4 In particular, the case ruled by the Italian Supreme Court concerned a deed creating a right of superficies on agricultural land for the construction of a photovoltaic plant.
5 Making reference, by way of example, to Article 9, paragraph 5 of Presidential Decree 917/1986.
6 In particular, by Circular No. 36/E/2013 invoked by the applicant Authority in support of its appeal, in respect of which the Italian Supreme Court recalled “that the circulars whereby the Revenue Agency provides an interpretation of a tax provision, even if containing instructions to hierarchically subordinate departments, express exclusively a non-binding opinion, not only for the departments to which they are addressed, but also for taxpayers, for the same authority that issued them and for the court; therefore, the so-called ministerial interpretation of tax provisions, whether contained in circulars or resolutions, does not represent a source of law, nor is it subject to the review of legitimacy exercised by the Supreme Court (pursuant to Articles 111 of the Italian Constitution and 360 of the Italian Code of Civil Procedure), since they are not the expression of regulatory activity, but rather an internal activity of the public administration itself, intended to exercise a directive function with respect to the dependent departments, but having no effect on the tax relationship (Cass. en banc No. 23031 of 2007; Cass. No. 35098/2022; Cass. No. 18618 /2019; Cass. No. 10195 of 2016)”.
7 See above, Resolution No. 4/E of 15 January 2021.
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