By the issuance of the Ruling no. 365/2023, recently published, the Italian Revenue Agency (hereinafter also "the IRA") released a new relevant opinion on the registration tax rate applicable to the deed of transfer of the surface right on agricultural land.
Opposite to the interpretation provided by the Italian Supreme Court in Ruling no. 3461 of February 11th 2021, the IRA has confirmed its previous opinion stated by the R.M. 22 June 2000, no. 92 and by the circular dated May 29th 2013, no. 18, i.e. the applicability of the registration tax with the rate of 15% instead of 9%.
The IRA's approach is based on an extremely formal interpretation of art. 1 of the Tariff, part I, attached to Presidential Decree 131/86, which identifies the rates applicable to "real estate transfer" deeds: according to the IRA, the equivalence between "real estate transfers" and "transfers or constitution of real estate rights" has general validity and, therefore, it is not limited to the first part of the Law. Consequently, all the rates provided for real estate transfers by art. 1 are also applicable to the deeds of establishment of real estate rights.
As a consequence of the above, the constitution of real estate rights, including surface rights, shall be considered included among the "transfers of agricultural land and related appurtenances in favor of subjects other than farmers and professional agricultural entrepreneurs", thus subject to a 15% registration tax rate.
The approach as above was first questioned by the Supreme Court with reference to the deeds of constitution of predial easements (Ruling. n. 16495/2003), due to the peculiar nature of these rights, and then contradicted with the recent Ruling. No 3461 of February the 11th 2021, in which the Supreme Court affirmed that the deeds of constitution of the surface rights cannot be considered as "transfers", and therefore should be subject to the 9% registration tax.
However, following the excursus on the evolution of art. 1 of the Tariff, part I, attached to Presidential Decree 131/86, the IRA states that a consistent interpretation of the Law implies the application of the same tax rate envisaged for the transfer of property also to the transfer/constitution of real estate rights.
For these reasons, the Tax Office rejects the interpretation of the Supreme Court Ruling No. 3461/2021, affirming that it could only be be considered for predial easements and not for surface rights.
In conclusion, the deed of constitution of a thirty-year surface right on agricultural land is subject to the 15% registration tax rate applicable to a taxable base equal to the market value of the asset, with mortgage and cadastral taxes of 50 euros each on top.
Originally published 05 July 2023.
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