Edited by Energy Team
“Excise reform” – Circular 13/2025 from the Customs and Monopoly Agency
Through the publication of the aforementioned Circular, the Customs and Monopoly Agency has analyzed the main novelties introduced through the issuance of Legislative Decree no. 43/2025, whose provisions will take effect from January 1, 2026 (except for the rules related to the SOAC).
Among the most significant commented novelties, the indications provided in reference to the “Accredited obligated entity (“Soggetto obbligato accreditato” SOAC) – art.1, paragraph 1, letters a) and e)” with particular reference to the so-called “entry conditions” and “Regulation of excise duties on natural gas and electricity – art.1, paragraph 1, letters g) and h) as well as letters m), n), o) and p)“, for the updates introduced regarding declaration and compliance in the field of excise duties.
Regarding the so-called “SOAC”, it is confirmed that the following entities can be recognized as accredited obligated parties and benefit from related advantages in terms of exemption, partial or full, suretyship and specific operational and accounting simplifications calibrated to the achieved reliability level:
- the fiscal warehouse operator (energy products, alcoholic products, processed tobacco);
- the registered company or the entity authorized to replace it as per art. 21, paragraph 6, TUA, (ie excise duty code) (coal, lignite, and coke);
- the seller or the party that proceeds with the billing of natural gas to final consumers under art. 26, paragraph 7, TUA;
- the seller or the party that proceeds with the billing of electricity to final consumers under art. 53, paragraph 1, TUA.
Additionally, it is clearly specified as follows “Other types of subjects liable for excise duty are excluded, as well as operators working in other tax sectors covered by the TUA”.
As for the “objective” requirements, it is required that the applicant:
- has been in operation for at least five continuous years in one of the sectors of activity included in the scope of application of the SOAC, starting from the date of issuance of the license or authorization;
- as of the date of submission of the request, no criminal action has been brought against them for the offenses referred to in art. 23, paragraph 6, TUA (see circular no. 14/D of December 4, 2017) and furthermore, in the five years preceding the request, they have not received any judgments, even if not final, of conviction or penalty pursuant to the civil procedural code., for the offenses referred to in art. 23, paragraph 6, TUA;
- they are not subject to crisis and insolvency regulation tools or insolvency procedures and furthermore have not been in the last five years;
- for legal entities or companies, no sanctioning measures issued pursuant to Legislative Decree no. 231/2001 for the offenses referred to in art. 23, paragraph 6, TUA. This requirement will apply from July 1, 2028.
It is reported that the provisions relating to the SOAC institution will become effective from the date of entry into force of the forthcoming ministerial decree that will establish the implementation methods.
Therefore, the issuance of this Decree is awaited for the application of the provisions introduced by Legislative Decree No. 43/2025 and for any clarifications regarding subjective and objective requirements and, finally, the procedure for requesting and obtaining such qualification.
Regarding the provisions related to gas and electricity, the Customs Agency reviews the following main innovations:
- with specific regard to the excise duty on natural gas intended for combustion, a new classification of product uses is foreseen that determines the application of different rates. The current rate classifications for combustion for “civil uses” and “industrial uses” will be replaced by those for “domestic uses” and “non-domestic uses,” ensuring precise identification of the relevant operational areas;
- regarding the assessment and settlement of excise duty (art. 26-ter and art. 55), obliged entities that invoice natural gas and electricity to end consumers, from 2026 will be required to submit, by the end of September and March each year, semi-annual consumption declarations instead of annual ones;
- for both sectors, the excise payment system is deeply innovated by providing for the payment of excise installments, to be paid monthly, determined based on the quantities of natural gas and electricity sold (as indicated in the payment bills or invoices issued in the immediately preceding calendar month) or self-consumed month by month, instead of the current system based on the payment of constant advance installments determined based on the tax due in the previous year, and subsequent adjustment;
- introduction of new rules regarding the provision of the guarantee (e.g. it cannot be, in any case, less than the arithmetic mean of the monthly amounts of the tax due on consumptions made in the previous twelve calendar months).
Conversion of the so-called “Decreto Fiscale”
On Friday, August 1st, the law of July 30, 2025, no. 108 was published, converting into law, with amendments, the decree-law no. 84 of 2025, containing urgent provisions on fiscal matters. The measure came into effect on Saturday, August 2.
Of interest to the sector, we highlight article 1 paragraph 1 bis, which contains an interpretation rule regarding the qualification of income derived from the granting of usufruct or the establishment of other real rights of enjoyment on real estate, providing that it i) constitutes “miscellaneous income” (letter h of paragraph 1 of article 67 of the TUIR) when the disposing party retains a real right on the property, while ii) qualifies as capital gain (letters b and b bis of paragraph 1 of article 67 of the TUIR) if the transferor simultaneously and entirely dispossesses every real right on the property.
As this is a rule of authentic interpretation expressly qualified as such, it has retroactive effect (Art. 1 of Law 212/2000).
The distinction is significant because:
- the capital gains under lett. b) of Art. 67 para. 1 of the TUIR are subject to taxation only beyond the five-year period (except for certain exceptions) or depending on the nature of the disposed assets (building land);
- the establishment of other real rights of enjoyment, provided for by the subsequent lett. h), generates miscellaneous income regardless of the previous holding period and the nature of the disposed property.
Finally, it is worth mentioning Art. 7, which contains provisions on biodiesel incentives.
Disposal in landfill: the new rate depending on the timing of execution
The Revenue Agency clarified some aspects regarding the new VAT rate, effective in 2025, for waste disposal in landfills (art. 1, c. 49, L. 207/2024). According to these regulations, “landfill disposal and incineration without efficient energy recovery” will no longer be subject to the reduced VAT rate of 10 percent, as outlined in item 127-sexiesdecies of Table A, part III of the VAT Decree.
The juridical advice number 12 issued by Revenue Agency on August 1st responds to an association asking whether the current standard VAT rate applies to services rendered starting January 1, 2025, or to those paid for from that date, regardless of when they are performed.
The Agency agreed that, in the absence of transitional rules, the general criterion of Article 6 of the VAT Decree (paragraphs 3 and 4) should be followed, which governs the timing of the transaction for VAT purposes. It states that “Services are considered to be rendered at the time of payment of the fee (…)” or earlier for the amount for which an invoice has already been issued or a payment made (see circular 32/E of 2013, p. 2 and circular 45/E of 2011, pp. 2, 3, and 4, which the Agency refers to).
The Agency summarizes the cases in which the standard rate applies to the services affected by the new regulation:
- “If an invoice is not issued by December 31, 2024, the corresponding payment is made in whole or in part starting January 1, 2025;
- If no payments are made by December 31, 2024, for all or part of the fee, the corresponding invoice is issued starting January 1, 2025”.
Further developments regarding the carryover of tax losses for IRES purposes
The recent changes to extraordinary operations provided for by the IRES reform (Legislative Decree 192/2025) were integrated last June, with reference to the transfer of a business branch, an operation often used in the energy sector, for example to segregate in a legal entity certain business branches in the field of renewable energies.
The Decree-Law 84 of 06/17/2025, in Article 2, added paragraph 5-bis to Article 176 of the TUIR, extending to the beneficiary of the extraordinary operation the same rules provided for in Art. 173, p. 10 for the beneficiary of the demerger with reference to the conditions and limits for carrying forward tax losses, as well as non-deducted interest and ACE.
In other words, said tax assets of the transferee beneficiary can be carried forward provided that the so-called “vitality test” is passed and within the limits of net equity, as regulated by Art. 173 in the context of demerger.
Consistently, article 177-ter has been amended regarding the carryforward of intra-group losses, including the case of contributions pursuant to article 176 of the TUIR within the scope of those intra-group operations for which the conditions and limits on the carryforward of tax losses, normally applicable to extraordinary operations, do not apply.
The Ministerial Decree implementing article 177-ter, issued a few days later (June 27, 2025) than the above-mentioned regulatory changes, specifies its scope of application. With particular reference to business contributions, the report to the decree (“Report”) specifies that it applies exclusively in the case “of the transfer of a business in favor of the entity with tax losses referring only to the losses incurred by it in tax periods when it and the transferor were already part of the same group from the beginning of the tax period when the tax losses were realized.
Conversely, conditions and limits of carry forward will continue to apply in the case of a business transfer for the losses incurred by the transferee in a tax period when it and the transferor were not part of the same group from the beginning of the tax period when the tax losses were realized”; these can then be carried forward within the limits and conditions mentioned above (so-called “Approved Losses”).
Tax losses (and also non-deducted interest under art. 96 of the TUIR, as well as surpluses of “ACE”) can be considered “approved” even following the inquiry process or during the conduct of control activities.
In addition to the new developments regarding contributions, Article 7, paragraph 1 of the Decree of the Ministry of Economy and Finance dated June 27, 2025, clarified that intra-group losses remaining with a company participating in the consolidated regime following an extraordinary operation (merger, demerger, or transfer of a business) involving a company transferring assets outside the scope of the consolidated perimeter are subject to the limits of Article 118, paragraph 2, of the TUIR and therefore maintain the status of losses prior to joining the consolidated group, usable only by the individual company that benefits from the extraordinary operation.
No longer waivable are the tax benefits associated with the “Tremonti Ambientale”
Through the response to ruling no. 167 of last June 23, the Revenue Agency stated that it is no longer possible to waive the benefit of the so-called “Tremonti Ambientale”, as the deadline for the definition under D.L. 124/2019 has long since expired, as well as the forfeiture terms under art. 43 of DPR 600/1973.
According to the ruling, it would not even be possible to waive the tax losses deriving from the “Tremonti Ambientale” of the merged company by omitting to carry forward the same losses.
The query pertains to a taxpayer who wanted to forgo the tax benefit in order to maintain the right to benefit from the incentive tariffs recognized by the GSE (Gestore dei Servizi Elettrici), which cannot be combined with other incentives (in this case, the Fourth “Conto Energia”), and consulted the Agency for clarity on the procedures to follow, both for the tax savings obtained and for the unused tax losses resulting directly from the aforementioned incentive.
The applicant supported their reasoning by referring to a recent response published on March 27, 2024, on their institutional website, in which the GSE stated that, in the event of the return of the Tremonti Ambiente tax benefit occurring even after the Definition under Article 36 (i.e., December 31, 2020), and certified by the Revenue Agency, the operator may be readmitted to the incentive tariffs for the relevant IV Conto Energia (hereinafter referred to as ”GSE FAQ”).
Regarding this, the Agency emphasizes that the GSE is not the entity entitled to rule on the procedures and terms related to the return of the Tremonti Ambiente benefits “as these are merely fiscal matters and in the competence of this Agency (as, moreover, the Applicant acknowledges by submitting the request for a ruling under examination here and addressing the above question to this Agency). Furthermore, it is recalled that the answers to the FAQs serve a primarily practical function and cannot “be assimilated to a source of law””.
Subjective positions and real estate bonuses. Transfer criteria in the event of a demerger
With the response to ruling no. 82, published last March 27, the Agency returned to addressing the issue of tax credits as subjective positions to be divided between the demerged company and the beneficiaries within the scope of the demerger.
In this context, the conclusion reached is that the tax credits of the demerged company arising from real estate bonuses (i.e. Ecobonus and Superbonus) represent an independent element of the entity’s assets, which, as such, can be distributed at the discretion of the parties involved.
The Agency first recalls the principle according to which the criterion for the allocation of subjective positions among the entities participating in a demerger is based on a general rule of proportional distribution, based on the quotas of net accounting assets transferred or remained as a result of the demerger, noting that this rule can be waived in the presence of a specific connection, individual or collective, between a single subjective position and its corresponding asset elements affected by the demerger (see response to ruling published under no.635 of 2020).
The agency also refers to the resolution of March 19, 2002, no. 91/E, according to which “with the term ”subjective position” «the legislator undoubtedly intended to include, within the scope of application of the rule, every active and passive legal situation generated by the regulations on direct taxes pertaining to the demerged entity, meaning not only the tax credits and debts of this company, but also all those situations of power and duty that would have had an effect in the activity of measuring the income of the demerged entity in the tax periods following the demerger»”.
Conversely, if such credits are not attributable to ”subjective positions”, they should be considered freely available by the parties, according to what is established in the demerger plan.
The credits subject to the query would fall under this last category. Indeed:
- They are precisely determined and due, and there is no provision aimed at redefining or limiting them in certain cases
- they do not affect the ordinary methods of determining the taxable income and income taxes of companies involved in the extraordinary operation
Green certificates and agricultural activity: the Supreme Court rules on the limits of agricultural income and related agricultural activities
The Supreme Court (judgment 4130/2025) states that revenues from agreements between agricultural businesses and industrial plants for energy enhancement and obtaining green certificates are not agricultural income, but commercial.
The case concerns a contract between an agricultural company and an industrial firm and was about the tax nature of income derived from the sale of thermal energy produced by a cogeneration plant for the purpose of obtaining green certificates.
At the heart of the decision was the judges’ consideration that agricultural activity must be identified by strictly applying Art. 32 of the Italian Tax Code, as well as Art. 2135 of the Civil Code. Therefore, in the Court’s opinion, agricultural activity must be based on a biological cycle while income from industrial synergies is taxed as business income.
In the specific case, the Court did not find the existence of a “connected” activity under the terms of the third paragraph of art. 2135 Civil Code, because both the subjective requirement (operation by the agricultural company for the benefit of agricultural production) and the objective requirement (predominant use of its own resources for agricultural production) were missing. On the contrary, the judges considered that the agricultural activity was instrumental to an industrial purpose.
Agrivoltaic systems: taxation for electricity produced and sold by agricultural company
The production and sale of electricity from an agrivoltaic system operated by an agricultural company cannot always be considered a connected activity generating agricultural income: this is stated by the Revenue Agency in the response to inquiry no. 61 of March 4, 2025.
Applying the same rules and criteria provided for photovoltaic systems, it is necessary to distinguish production as follows: i) the production and sale of electricity from agrivoltaic systems for the part generated by the first 260,000 kWh annually will always be considered connected activities and productive of agricultural income, while ii) for the part exceeding this limit, they will be subject to the flat-rate taxation (25%) provided for by art. 1, paragraph 423, law no. 266/2005 upon meeting the requirements, namely the connection to the main agricultural activity as clarified by Circular 32/E of July 6, 2009.
The aforementioned circular linked the connection to three orders of requirements: i) energy production through plants with architectural integration or partially integrated (art. 2 of the D.M. February 19, 2007, for example, greenhouses, sheds, structures for housing animals or equipment); ii) carrying out agricultural activities from which a turnover greater than that of the production and sale of photovoltaic energy exceeding the aforementioned limit derives; iii) within the limit of 1 MW per company, the agricultural entrepreneur, for every 10 KW of installed power in excess of the allowance, must demonstrate to hold at least 1 hectare of land used for agricultural activity.
In the absence of any of these requirements, the production and sale activities of agrivoltaic energy produced beyond the aforementioned limit (of 260,000 kWh annually) will be subject to the ordinary corporate income regime.
Biogas, end of disputes concerning the taxation of the incentivizing portion of the all-inclusive tariff.
Disputes regarding the taxation of the incentivizing component included in the all-inclusive tariff recognized by the GSE (Gestore dei Servizi Elettrici) for biogas plants seem to be reaching a conclusion.
The issue concerns the applicable regulations for direct taxes with reference to the all-inclusive tariff established by Law 244/2007 and the Ministerial Decree of December 18, 2008. The aforementioned tariff consists of a payment recognized to the producer of electricity generated from renewable sources for its feed-in to the grid.
The uncertainties regarding biogas stem from the fact that in this case, unlike the electricity produced by photovoltaic plants (for which the incentive is recognized separately from the energy price), according to the Agency, a tariff would not be attributed that allows for distinguishing the incentivizing component and the compensatory component, and thus the entire amount should be considered taxable.
On the contrary, taxpayers have always argued that the incentivizing portion and the compensatory portion can be identified by calculating the difference between the energy price determined by the GSE and the tariff.
In recent months, the Deputy Minister of Economy, Maurizio Leo, announced that the Revenue Agency has received precise instructions not to make new tax claims and to settle existing disputes, marking an important turning point for agricultural producers.
These clarifications, although informal, are in line with some of the most recent case law on the subject (CGTI Pavia, sec. 1, n. 293-2024; CGTII Lombardia, sec. 9, n. 143-2025). Another part of the case law has instead followed the interpretation of the Tax Administration (CGTI Firenze, sec. 2, n. 224-2024; CGTI Firenze, sec. 1, n. 479-2023; CGTII Lombardia, sec. 2, n. 2662-2023). See also our previous newsletters on this topic.
Registration tax and VAT on preliminary sales agreements
The Court of Cassation (ordinance 17957 filed last July 2nd) reiterated that, for preliminary contracts with advance payments subject to VAT, a fixed registration tax applies both to the contract and the payments, according to the principle of VAT-registration tax alternation. The decision refers to cases occurring before the new rules of Legislative Decree 139/2025 came into force and seems to deviate from what was previously stated (Cass 27093/2024) regarding the unified taxation of the preliminary-definitive sequence.
Following the introduction of the aforementioned Legislative Decree 139/2025, a proportional tax of 0.5% is instead provided for deposits and advances not subject to VAT, or the lower tax due for the contract as a definitive title.
Registration tax on the transfer of building rights
The Circular of the Revenue Agency no. 2/E of March 14, 2025, addressed the indirect taxation of the transfer of building rights by any name, to which the proportional registration tax of 3 percent and the mortgage tax of 200 euros apply.
The clarification follows the intervention of Article 2, paragraph 1, letter ff), Legislative Decree no. 139/2024 which amended Article 9 of the Tariff, Part I, attached to Presidential Decree no. 131/1986 (Tur), including contracts transferring building rights by any name in the category of acts concerning services with a property content not indicated elsewhere, in adherence to the opinion expressed by the United Sections of the Court of Cassation with judgment no. 16080/2021.
Instead, in implementation of the VAT – registration alternativity principle (regulated by Article 40 of DPR 131/1986), the act of transfer of building rights subject to VAT, incurs the registration tax at the fixed rate of 200 euros.
Solidarity contribution 2023, further clarifications on the limit of net assets
With the principle of law no.5 of June 3, 2025, the Agency revisits the identification of the net asset value at the closing date of the fiscal year preceding the one in progress on January 1, 2022, of which 25% constitutes the maximum value of the contribution.
It will be remembered that the solidarity contribution (Budget Law 2023, article 1, paragraphs 115-119) is due for an amount equal to the lesser of the theoretical contribution amount and 25% of the net equity amount resulting from the financial statements for the year 2021.
In this regard, also in that case concerning derivatives, the Agency clarified in response 339 of 2023 that the net equity to be considered for the purpose of the solidarity contribution limit should not be affected by the value of the “Reserve for cash flow hedging transactions.”
Well, in this context, the Agency on this last occasion asserts that the evaluations at fair value positive and negative aspects of speculative derivatives represent profits/losses that directly contribute to the determination of the operating result and, thus, the consistency of the net equity, as they are not ”temporary components by nature” like reserves for hedging operations. In other words, valuations at fair value of speculative derivatives represent profits/losses expressing windfall profits and are therefore relevant for determining the maximum amount of the tax in question.
Interest expenses on mortgage loans: clarifications in case of granting surface rights
According to a recent response to a ruling request (No. 110 of April 16, 2025), it is not permitted to fully deduct interest on mortgages secured by real estate companies that manage contracts to purchase land on which the right of surface is established. This is because full deductibility would apply to properties intended for leasing (Law 244/2007, art. 1, c. 36).
The question was posed by an Srl, part of a group that acquires land for solar plant operators, which has signed preliminary contracts for the purchase of land in Italy to be financed with loans secured by mortgages on the land
In the referenced response, the Revenue Agency initially recalls the general rules of deductibility for IRES purposes of interest expenses related to loans taken out by companies for business activities (art. 96 of the TUIR), which provides an annual limit on the deductibility of interests, establishing that any excess may be deducted in subsequent years when conditions occur.
The Agency continues by commenting on the exclusion from the aforementioned limitation introduced by Law 244/2007, art. 1, c. 36 for real estate management companies, i.e., the “ companies that effectively and predominantly engage in real estate activities”, which – to be so qualified – must have assets mainly composed of the normal value of properties intended for rental and rental income for at least two-thirds of the total.
For the full deduction in the exercise, it is necessary that the interests relate to the purchase or construction of the properties and that the mortgage loan concerns the same properties leased out. The Agency, therefore, does not agree with the taxpayer’s argument that surface rights can be considered equivalent to rental contracts.
The Agency’s arguments include a reference to circular no. 37/2009, which also clarified that the exception is applicable to both investment properties and instrumental properties, provided they are intended for rental.
Tosap. Reduction applicable to companies in the supply chain of the national electricity system
The Supreme Court, with five ordinances (769, 771, 773, 774, and 775/2025), concluded, for the first time, that companies in the electricity sector can apply the “agevolated” provision regarding TOSAP provided by Legislative Decree 446/1997 (art. 63, c. 2, letter f), as they carry out activities instrumental to the provision of a public service.
These ordinances are contrary to the previous orientation (ordinances no. 13142 and 13332 of 2022 and no. 16539/2017).
The rulings originate from disputes initiated by local authorities who believed the favorable regime was not extendable to occupations carried out with private facilities.
Notably, the Court of Cassation has recognized that the concept of a public service delivery network should be understood as a whole, as the national electricity system, which is a single integrated network, comprises a series of interconnected phases (production, transmission, dispatching, and distribution).
Installation of agrivoltaic systems and reverse charge: clarifications from the Revenue Agency
With the response 156 of June 16, 2025, the Revenue Agency issued a ruling on the VAT treatment applicable to the installation of advanced agrivoltaic systems.
The question was aimed at determining whether, for the installation of such systems — intended to integrate agricultural production with energy production — the reverse charge mechanism provided by art. 17, sixth paragraph, letter a-ter) of DPR 633/1972, already applied in the past by the applicant to an integrated photovoltaic system on greenhouses, was applicable.
The Agency clarified that the reverse charge applies only to installations carried out on “buildings”, as defined by practice, including strictly functional appurtenances.
Consequently, agrivoltaic systems installed on agricultural land — neither integrated into nor serving buildings — remain excluded from this regime.
VAT refund for photovoltaic systems built in-house by the VAT Group
In response to ruling no. 155 of June 12, 2025, the Revenue Agency clarified that the VAT Group, as a single taxable entity for VAT purposes, can be equated to those who directly build, without outsourcing to third parties, a photovoltaic system to be used as a capital asset for the production of energy intended for sale.
If it is possible to precisely identify, for each system built, the costs incurred by the VAT Group for the purchase of goods and services related to design, construction, and maintenance, the corresponding VAT credit surplus can be requested for refund by the Group Representative.
This possibility is based on the interpretation of Article 30, letter c), of the VAT decree, which provides for the reimbursement of VAT limited to that related to the purchase of depreciable goods. In line with the principle of unitary subjectivity, the VAT Group directly fulfills the obligations and rights regarding VAT through its representative.
This approach was confirmed by resolution no. 20/E of March 26, 2025, which incorporates the stance expressed by the Court of Cassation with judgment no. 13162 of May 14, 2024. In that circumstance, the judges recognized a substantial equivalence between the deduction and reimbursement of VAT, extending the concept of “purchase” to include the legal availability of goods, as in the case of lease or loan contracts.
Provided that the necessary instrumental nature of the goods to the economic activity is maintained, the regulation can also be applied to goods that, although not formally depreciable, are intended to the company as medium-long term investments. Consequently, the VAT related to improvement, transformation, or expansion works on third-party assets can be reimbursed if all the required conditions are met, with particular attention to the duration of possession and the instrumental function of the asset.
Constitutional Court ruling no. 43/2025: the surcharge on electricity excise duty is not compatible with EU law due to lack of specific purpose
With the ruling no. 43/2025, filed on April 15, 2025, the Constitutional Court ruled that the provincial surcharge on the electricity excise duty (repealed in 2012) does not meet the requirement of a specific purpose as required by European Union law, since the instituting norm provided only a general allocation of the revenues in favor of the provinces.
The Court emphasized that this conclusion is consistent with the established case law which considered the purpose of the tax indistinguishable from the general budgetary purpose.
The Constitutional Court has also considered the effects of a recent ruling by the EU Court of Justice (case C-316/22 – Gabel Industria Tessile SpA and Canavesi Spa – 11 April 2024). This judgement, while confirming that national judges cannot disregard internal rules that conflict with EU directives in disputes between private parties, has established that customers of electricity supply services must be able to take direct action against the State for the refund of undue taxes, even in case of legal impossibility against the supplier.
However, following the Constitutional Court’s ruling declaring the additional excise duty on electricity unconstitutional, customers will be able to request a refund directly from suppliers, and the latter can then seek reimbursement from the State, considering the retroactive effect (i.e. ex tunc) of the Court’s ruling, except for completed relationships.
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