Prepared by Energy Team
With Resolution no. 23/E dated April 3 2025, the Italian Tax Authority (“ITA”) has aligned its interpretation with the one supported by the Supreme Court, confirming that deeds granting surface rights (diritto di superficie) over agricultural land are subject to registration tax at the rate of 9%.
This position marks a departure from ITA’s prior interpretation, which stated the application of the 15% rate under the third section of Article 1, paragraph 1, of the Tariff attached Registration Tax Law (Presidential Decree No. 131 of April 26, 1986) on deeds for the “constitution” of surface rights over agricultural land.
After briefly summarizing its previous administrative practice as well as the jurisprudence of the Supreme Court, ITA concludes: “in light of the prevailing position expressed by the Supreme Court, the interpretative guidance contained in the previously issued practice documents is no longer applicable, specifically with regard to the registration tax treatment of deeds granting surface rights over agricultural land.
As such, the applicable rate is the 9 percent outlined in the first sentence of Article 1, paragraph 1, of the Tariff, instead of the 15 percent rate referred to in the third sentence of the same paragraph.”
The Supreme Court, in its recent decision No. 27293/2024 [commented in our February 2025 Energy Tax Newsletter], had in fact ruled that the constitution of surface rights over agricultural land is subject to the 9% registration tax, emphasizing that the right of superficies is legally distinct from full ownership. The Court further held that: “The granting of surface rights by the original owner does not fall within the scope of the provisions governing transfers of property rights.”
The decision of the Supreme Court, therefore, clarified that the 15% registration tax rate is still applicable to the transfer of other ownership rights (“diritti reali di godimento”) but not to the constitution of such rights.
In the light of the interpretation nr. 23/E, the clarifications provided by Tax Authorities in the past (reference is made to Circular letter 36/E/2013) are no longer applicable. Therefore, under certain conditions, Taxpayers might consider the chance to ask for the refund of the Registration tax paid in excess to 9%.
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