Prepared by Carlo Romano, Marco Longobardi and Anastasia Pompili
The Tax Court of First Instance of Trieste in Judgment No. 81 filed on April 11, 2023 ruled for the first time, as part of a dispute on the annulment of the notice for the exercise of the option under Article 121 of Decree-Law No. 34/2020 (so-called “Relaunch Decree”).
The facts in question
The condominium, having reached 60% of the work progress, sent, through an authorized intermediary, the communication for the exercise of one of the options provided for in Article 121 of the Relaunch Decree. The Revenue Agency, in accordance with the provisions of Article 122-bis of the same decree, after suspending the effects of the communication for the purpose of analyzing its regularity proceeded with the denial of the prior assignment of construction credits. Faced with a request for access to the records and the submission of an application for self-defense by the condominium, the Office responded in the negative, believing that “the registration of the property in the name of natural persons was a ploy to take advantage of the bonus not due to the contractor in the case of direct purchase of the real estate units and their subsequent renovation.” In fact, if the purchase of the real estate units had been made by the company contracting the conservative renovation work, the latter would not have been able to benefit from the 110% as a business income holder. Whereas the contracting company, in order to circumvent this prohibition, had sold the preliminary sales contracts to individuals who, having purchased the properties, had formed the condominium to benefit from the benefits in question.
The annulment measure
According to the Office, the taxpayer had carried out evasive behavior by abuse of right pursuant to Article 10-bis of the Taxpayer’s Statute (l. 212/2000) by artificially constituting the condominium for the sole purpose of accessing the tax benefits that are excluded for interventions carried out by persons with business income. Therefore, the Office found the risk profiles arranged by the legislation in question (Art. 122-bis of the Relaunch Decree) annulled the prior assignment of construction credits. The condominium challenged this notice of prior “blocking” of the assignment of construction credits before the Tax Court, requesting its annulment. The Office, appearing before the court, objected to, among other things, the lack of jurisdiction for alleged violation of Article 19 of Legislative Decree No. 546/1992.
The decision of the Court of First Instance of Trieste
The Court of First Instance Tax Justice of Trieste, in the judgment in question, considered its jurisdiction regarding the communications in question to be subsistent, holding, in accordance with what has been ruled by the Court of Cassation (ex plurimis: sentence 3466 2021) that “the list of appealable acts, contained in Legislative Decree no. 546 of 1992, art. 19, while having to be considered exhaustive, should be interpreted in an extensive sense, both in deference to the constitutional norms of protection of the taxpayer (art. 24 and 53 Const.) and good performance of the public administration (art. 97 of the Const.), and as a result of the enlargement of tax jurisdiction made by Law no. 448 of December 28, 2001. ” On the merits, the first instance judges considered the denial of prior assignment of construction credits to be legitimate due to the reasons expressed by the Office in the denial of self-protection, and therefore due to abuse of right.
Conclusions
The judgment of the Court of First Instance of Trieste assumes relevance not only for the question of merit addressed but also for the ruling on the appealability of prior denial notices to the assignment of construction credits if such measures lack the essential requirements of legitimacy of administrative-tributary acts (i.e., reasoning, indication of the person in charge of the procedure, indication of the authority assigned to judicial protection) confirming the non-taxability of the acts that can be challenged before the Tax Courts of Justice.
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