The Consiglio di Stato [highest Italian Court for administrative matters], by ju…
The purpose of this document is to briefly analyse the changes introduced by the Decree on Tax deductions for certain categories of entities implementing restructuring fulfilling specific energy efficiency goals: reduction of seismic risk, installation of photovoltaic systems or infrastructure for recharging electric vehicles within buildings.
Article 119 of Decree-Law No. 34/2020, converted into law, with amendments, by Law No. 77 of 17 July 2020 (hereinafter the “Relaunch Decree”), provided for the application of the “Superbonus”, a tax deduction that applies – at the rate of 110% – to certain expenses incurred by taxpayers in the period between 1 July 2020 and 30 June 2022[1] in relation to specific initiatives relating to energy efficiency: reduction of seismic risk, installation of photovoltaic systems or infrastructure for recharging electric vehicles within buildings.
This is a concession introduced in the context of urgent measures related to the epidemiological emergency caused by Covid-19, which consists of deductions from gross tax and is granted when certain initiatives are implemented to increase the energy efficiency of existing buildings or reduce their seismic risk.
In particular, the Relaunch Decree distinguishes between “primary” or “lead” measures (the implementation of which grants the right to access the tax concessions governed therein) and “additional” or “follow-on” measures (which grant the right to access the tax concessions only if they are carried out in conjunction with a “primary” initiative)[2].
The first category (“lead” interventions) includes:
The following belong to the category of “follow-on” initiatives:
Finally, it should be noted that the Relaunch Decree also introduced the general option of rather than direct take-up of the deduction, for an advance contribution in the form of a discount from suppliers of goods or services or, alternatively, for the assignment of the receivable corresponding to the deduction due.
Pursuant to Article 121, entities incurring costs for the works expressly listed therein [8] may opt, instead of the direct take-up of the deduction due, either: (i) for a contribution, in the form of discount on the consideration due, of a maximum amount not exceeding the consideration itself, paid in advance by the supplier of goods and services relating to the concessions; (ii) for the assignment of a tax credit corresponding to the deduction due, to other entities, including credit institutions and other financial intermediaries, with the right to subsequent assignments.
After identifying the works of which the implementation confers the right to access the Superbonus, it is useful to specify the subjective scope of application of the legislation in question.
In this regard, paragraph 9 of Article 119 of the Relaunch Decree specifies that the Superbonus applies to works carried out by the co-owners; by natural persons outside the exercise of business, art or professional activities; by autonomous social housing institutes (IACP), however named, as well as by bodies having the same corporate purposes as the aforementioned institutions, established in the form of companies that meet the requirements of European legislation on “in house providing”; by co-operatives living in undivided property; by the ONLUS [non-profit organisations] referred to in Article 10 of Legislative Decree No. 460/1997; by voluntary organisations listed in the registers referred to in Law No. 266/1991; by social promotion associations listed in national, regional and autonomous provincial registers; by amateur associations and sports clubs listed in the register established pursuant to Article 5, paragraph 2, letter c) of Legislative Decree No. 242/1999, solely with regard to works intended exclusively for properties or parts of properties dedicated to changing rooms [9].
The Revenue Agency also specified that the deduction is due to persons who own or have possession of the property where the works are to be carried out on the basis of a suitable permit at the time the works are commenced or at the time expenses are incurred, if earlier. These include, in particular, the owner, the bare owner or the holder of another right of possession in rem (usufruct, right of use, occupation as a dwelling or surface area), the person in possession of the property on the basis of a duly registered lease, including a financial lease, or commodatum agreement, with the consent of the owner to carry out the works as well as the family members of the person in possession or occupying the property.
Article 63, paragraph 1 of Legislative Decree 104/2020 amended the original wording of Article 119 of the Relaunch Decree, introducing a new paragraph 9-bis according to which “Resolutions of the co-owners’ meeting concerning the approval of the works referred to in this Article and any financing intended for them, as well as subscription to the option for sale or discount referred to in Article 121, are valid if approved by a number of votes representing the majority of those present and at least one third of the value of the building […]. [10]”
The law therefore provides for a reduction - compared to the provisions of Article 1136 of the Civil Code - of the majorities required for the adoption of co-owner shareholders’ meeting resolutions concerning the approval of works that give entitlement to the Superbonus.
According to the regulations, in fact, (i) resolutions relating to the reconstruction of the building, extraordinary repairs of significant scope or innovations to improve the safety and salubrity of buildings and systems and to reduce the energy consumption of buildings must always be approved by a number of votes representing a majority of those present and at least half of the value of the building [11] and (ii) resolutions concerning innovations aimed at improving or facilitating the use of or improving the performance of common facilities must be approved by a number of votes representing a majority of those present and at least two-thirds of the value of the building [12].
The Relaunch Decree, therefore, provides for more flexible regulations than the standard rules, precisely in order to encourage anti-seismic works and energy-efficient upgrading of buildings.
Finally, it should be noted that the second part of paragraph 9-bis of Article 119 of the Relaunch Decree specifies that “Resolutions of the co-owners’ meeting, concerning the charging to one or more co-owned units of the entire expenditure relating to the approved works, shall be valid if approved by the same procedures as in the previous clause and provided that the co-owned units to which the expenditure is charged express a favourable opinion”.
Accordingly, if the costs of the works are charged to individual co-owned units, it would in any case be necessary to obtain a favourable opinion from the co-owners thereof.
This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For further information please contact Marco Cappa or Michelangelo Eugenio Maida.
[1] Article 1, paragraph 66, letter a), No. 1 of Law no. 178/2020 amended paragraph 1 of Article 119 of Legislative Decree No. 34/2020, replacing the words “31 December 2021” with the words “30 June 2022”.
[2] However, regardless of this distinction, paragraph 3 of Article 119 of the Relaunch Decree specifies that, for both categories of initiative, “For the purposes of access to the tax deduction, the initiatives […] as a whole must ensure […] the improvement of at least two energy classes of the building or of the property units located within multi-family buildings which are functionally independent and have one or more independent access points from outside, or, if this is not possible, the achievement of the highest energy class, to be demonstrated by means of the energy performance certificate (A.P.E. In the Italian acronym), referred to in Article 6 of Legislative Decree 192 of 19 August 2005, before and after the works, issued by a qualified technician in the form of a sworn statement”.
[3] Article 119, paragraph 1, letter a) of Legislative Decree No. 34/2020.
[4] Article 119, paragraph 1(b) and (c) of Legislative Decree No. 34/2020.
[5] Article 119, paragraph 4 of Legislative Decree No. 34/2020.
[6] Article 119, paragraph 2, of Legislative Decree 34/2020: this provision also specifies that energy efficiency works as indicated in the aforementioned Article 14 of Legislative Decree 63/2013 confer the right of access to the Superbonus, including regardless of installation of thermal insulation or replacement of existing winter air conditioning systems, if the building concerned is subject to the protection governed by the Code of Cultural and Landscape Heritage or such works cannot be carried out given the of building, urban planning and environmental regulations.
[7] Article 119, paragraph 8, of Legislative Decree No. 34/2020.
[8] Article 121, paragraph 2, of Legislative Decree No. 34/2020: “In derogation of Article 14, paragraphs 2-ter, 2-sexies and 3.1, and Article 16, paragraphs 1-quinquies, third, fourth and fifth sentences, and 1-septies, second and third sentences, of Decree-Law No. 63 of 4 June 2013, converted, with amendments, by Law No. 90 of 3 August 2013, the provisions of this Article shall apply for expenditure relating to: a) refurbishment of the built heritage referred to in Article 16-bis, paragraph 1, letters a) and b) of the consolidated law on income taxes, referred to in Decree of the President of the Republic No. 917 of 22 December 1986; b) energy efficiency referred to in Article 14 of Decree-Law No. 63 of 4 June 2013, converted, with amendments, by Law No. 90 of 3 August 2013 and referred to in paragraphs 1 and 2 of Article 119; c) adoption of anti-seismic measures referred to in Article 16, paragraphs 1-bis to 1-septies of Decree-Law No. 63 of 4 June 2013, converted, with amendments, by Law No. 90 of 3 August 2013 and referred to in paragraph 4 of Article 119; d) refurbishment or restoration of the façade of existing buildings, including solely cleaning or exterior painting, referred to in Article 1, paragraphs 219 and 220, of Law No. 160 of 27 December 2019; e) installation of photovoltaic systems referred to in Article 16-bis, paragraph 1, letter h) of the consolidated law on income taxes referred to in Article 119 of this Decree; f) installation of columns for charging electric vehicles referred to in Article 16-ter of Decree-Law No. 63 of 4 June 2013, converted, with amendments, by Law No. 90 of 3 August 2013 and referred to in paragraph 8 of Article 119”.
[9] More specifically, Article 119, paragraph 9 of Legislative Decree No. 34/2020 provides that: "The provisions contained in paragraphs 1 to 8 shall apply to the works carried out: a) by common ownership entities and natural persons, outside the scope of business art or professional activities, with regard to interventions on buildings comprising two to four property units separately stacked, even if owned by a single owner or in joint ownership by several natural persons; b) by natural persons, outside the scope of business activities, arts and professions, on property units, except as provided in paragraph 10; c) by independent public housing establishments (IACP) however named, as well as by bodies having the same corporate purposes as the aforementioned institutions, established in the form of companies that meet the requirements of European legislation on "in house providing" for activities carried out on properties owned by them or managed on behalf of municipalities, authorised for public residential buildings; d) by co-operatives residing in undivided property, for activities carried out on properties owned by them and allocated for use by their shareholders; d-bis) by non-profit organisations of social utility pursuant to Article 10 of Legislative Decree no. 460 of 4 December 1997, by voluntary organisations listed in the registers referred to in Article 6 of Law no. 266 of 11 August 1991, and by social promotion associations listed in the national register and in the regional registers and the independent provinces of Trento and Bolzano provided for in Article 7 of Law No. 383 of 7 December 2000; e) by amateur associations and sports clubs listed in the register established pursuant to Article 5, paragraph 2, letter c) of Legislative Decree no. 242 of 23 July 1999, solely with regard to works intended exclusively for properties or parts of properties dedicated to changing rooms".
[10] This provision is in line with the provisions of Article 26, paragraph 2 of Law 10/1991, pursuant to which “For work son buildings and systems to reduce energy consumption and the use of the sources of energy indicated in Article 1, identified through an energy performance certificate or an energy survey conducted by a qualified technician, the relevant co-ownership decisions shall be valid if adopted by the majority of those present, with the number of votes representing at least one third of the value of the building”.
[11] Article 1136, para. 2 and 4 and Article 1120, para. 2, No. 1 and 2 of the Civil Code
[12] Article 1120, para. 1, of the Civil Code
