Genoa - With the circular 16 / E of 01.07.2019, Italian Revenue Agency offered a clarification interpretation, although contested by the port operators, of the 2018 finance law on the subjecting of state property to IMU (1) and TASI (2) taxation system.
1. A SHORT OVERVIEW ABOUT THE TAXATION ON DEMANIAL ASSETS
AND THE LATEST JURISPRUDENCE OF LEGITIMACY
The case dealt with is the occasion for an overview on the issue of tax charges on state property, which is also subject to change by the 2018 finance law.
Originally, with the d. lgs. 504/1992, the legislator had established a regime of exemption from the municipal tax for buildings classified in the cadastral category E, or “real estate for a special purpose” (art. 7, paragraph 1, lett. B). Among these are the “stations for transport, land, sea and air services” (E / 1) and “buildings for special public needs” (E / 3). The scope of application of this facilitated regime has been extended to include the buildings present within the public state areas, including maritime ones.
Subsequently, however, three regulatory and legislative changes took place, which changed the framework circumscribed by d. lgs. 504/1992: the decree of the Ministry of Finance n. 28/1998, the art. 18 of the l. 388/2000 and the decree law n. 262/2006 (later converted into law 286/2006).
(i) The decree of the Ministry of Finance introduced the concept of a real estate unit (a prerequisite for the application of the local tax pursuant to Article 2 of Legislative Decree 504/1992) as the portion of building, or building, or set of buildings or an area “which, in the state in which it is located and according to local use, presents the potential for functional and income autonomy”;
(ii) the art. 18 of the l. 388/2000 introduced a modification of the art. 3 of d. lgs. 504/1992, extending the applicability of the local tax also to the “concessionaires of the state-owned areas”, originally excluded from the law;
(iii) the art. 2, paragraph 40, of the d. the. 262/2006, has dispelled any possible interpretative doubts about the scope of the provision of the decree of the Ministry of Finance, stating peremptorily that “in the real estate units surveyed in the cadastral categories E/1, E/2, E/3, E/4 , E/5, E/6 and E/9 cannot include real estate or portions of buildings intended for commercial, industrial, private office or different uses, if the same present functional autonomy and income.”
Therefore, as a result of these legislative and regulatory interventions, those buildings, portions of buildings or areas that have the potential for functional and income autonomy, even if present within a port station, could no longer enjoy the exemption established by d. lgs. 504/1992.
This orientation was subsequently confirmed by the jurisprudence of the Supreme Court which, with some rulings (including judgments n. 10031/2017, n. 7390/2018) confirmed the principle according to which among the “real estate units registered in the cadastral categories E/1, E/2, E/3, E/4, E/5, E/6 and E/9 cannot include buildings or portions of buildings intended for commercial, industrial, private office or different uses, if the same present functional and income autonomy and that is [...] properties for themselves useful or capable of producing their own income, even if used for the institutional purposes of the owner entity.” Not even the uncovered areas were exempt from this exclusion: the Supreme Court, with the most recent sentence of 04/12/2019, n. 10287, in fact, reiterated that “are subject to ICI (3), as they cannot be classified in category E, the uncovered areas of a port terminal used to carry out the port public activity and the related necessary operations, as indispensable to the concessionaire of the state property for the performance of its activity, given that the requirement of the imposition is that each area is likely to constitute an autonomous real estate unit, potentially productive of income” (the Supreme Court had already ruled in this sense with decisions n. 10031 and 10032 of 2017).
2. THE ITALIAN FINANCIAL LAW 2018 AND THE CIRCULAR 16 / E
OF THE REVENUE AGENCY OF 01.07.2019
The last legislative intervention on the subject is constituted by art. 1, paragraph 578 of the l. 205/2017, whose scope (that is, whether it is an authentic interpretation of the existing legislation or whether it constitutes a legislative amendment) is the subject of extensive discussion after the Revenue Agency published, on 01.07.2019, its own the circular n. 16 / E.
The aforementioned paragraph 578 establishes that “with effect from 1 January 2020, the docks and uncovered areas of ports of national and international economic importance under the responsibility of the Port System Authorities referred to in Annex A annexed to the law of 28 January 1994, n . 84, used for the operations and port services referred to in paragraph 1 of article 16 of the same law, the connected road and railway infrastructures, as well as the deposits located therein strictly functional to the aforementioned operations and port services, constitute properties for a particular destination, from register in the register in category E/1, even if entrusted to private individuals in concession. The docks and uncovered areas of the same ports used for passenger service, including cruise passengers, are also registered in category E/1. For the purposes of the existence of the requirement of strict functionality of the deposits, other than customs, operations and port services referred to in this paragraph, reference is made to the authorizations issued by the competent authority of the port system pursuant to Article 16, paragraph 3 , of the aforementioned law n. 84 of 1994 .”
In essence, the law has clarified that, starting from 1 January 2020, the docks and uncovered areas, even if granted to private individuals, will be exempt from local tax provided that:
1) belong to a port (physically understood as the area bounded by the Port Regulatory Plan (PRP) referred to in Article 5 of the aforementioned Law No. 84 of 1994, or, in the absence of PRP, by the port planning tool in force) of national and international relevance within the competence of the Port System Authority e
2) are used for operations and/or port services.
The exemption regime is also accessed by the connected road and railway infrastructures, as well as the deposits therein (other than customs), as long as they are “strictly functional to the aforementioned port operations and services”, bringing the concept of “strict functionality” back to the authorizations pursuant to art. 16 co. 3 l. 84/94. The traceability of the use of these buildings to port operations or services will be declared by the tax payer through c.d. self-certification (as per article 1 paragraph 579, l. 205/2017).
The Inland Revenue has deemed, with the very recent circular mentioned above, that this rule does not constitute “authentic interpretation rule”, and that it has therefore “introduced substantial modifications to the previous general reference regulatory framework”. These considerations imply that, according to the interpretation of the ADE (4), even the uncovered areas having the aforementioned characteristics, with any implication on the numerous tax proceedings already in progress, cannot be considered exempt from the tax before the entry into force of the aforementioned law
The legislation also provides for a procedure for varying the stacking based on the new regulatory parameters for assets that are not new construction: pursuant to paragraph 580, buildings under construction in 2019, in fact, do not enjoy the provisions established by paragraph 578 , but follow the registration rules in force (without prejudice to the possibility of subsequently submitting a declaration of revision by the tax payer and being in any case an official revision by the competent Provincial-Territorial Offices of the Agency by 31.03.2020 ).
The subject of the subjection of state property to local taxes is particularly complex and a harbinger of interpretative and applicative difficulties.
The criterion of “strict functionality” of the assets is not univocal, especially where such assets nevertheless present “functional and income autonomy” not exclusively attributable to the carrying out of operations and port services. However, all assets in state-owned areas relevant to ports that are not “of national and international economic significance under the competence of the port system Authorities” are excluded from the exemption, creating a difference in treatment between goods that are completely identical in terms of characteristics and purpose . In the circular, the Inland Revenue detects how goods still present in the port area but not functional to the operation of the operations and services such as “the buildings intended for the residence of people (homes, guesthouses, hotels, hostels , etc.) [...], public or private offices, [...] and warehouses for the construction and maintenance of ships, boats and any other means or plant operating in the port area, autosilos and parking spaces at ground level intended for commercial use or other uses not strictly functional to port operations and services ”, with every consequence on the positions of the concessionaires of the state-owned maritime areas.
The scope of the exemption pursuant to l. 205/2017, as interpreted by circular 16/E, risks having a double effect: on the one hand, in fact, it seems to constitute a diaphragm with respect to the legislation currently in force, dictating a more precise regime for the period subsequent to 01.01.2020.
On the other hand, however, the prediction expressed about the exemption for docks and uncovered areas could lead the Judges who are currently evaluating the (numerous) appeals already pending to infer that, under the current legislation, these assets are not exempt. The scope of the legislative intervention would be very different, if not the opposite, if it were attributed interpretative rather than abrogative: in that case, in fact, the wording of paragraphs 579 ff. art. 1 L.105 / 2017 would be a mere specification of the legislation currently in force, with every positive reflection on the appeals currently pending before the relevant tax courts.
*Lawyers, LCA Legal Firm
(1) Municipal Tax
(2) Tribute for indivisible services
(3) Municipal Tax, replaced by IMU in 2012
(4) the Italian Revenue Agency