Supreme Court victory for the Firm with respect to requalification, under article 20 of Presidential Decree no. 131/1986, in the photovoltaic sector
Tremonti Romagnoli Piccardi and Associates was successful before the Supreme Court in a case concerning the unlawfulness of the legal requalification as surface right of land rental for the construction of photovoltaic plants, for the purposes of registration and mortgage/cadastral taxes.
The Firm’s team, composed of partner Marco Emma, senior associate Laura Trimarchi and of counsel Giuseppe Russo Corvace, successfully assisted before the Supreme Court, two main players in the energy sector in a series of judgments related to several payment notices through which the Italian Revenue Agency sought to requalify, for the purposes of registration taxes pursuant to art. 20 of Presidential Decree no. 131/1986, various contracts for the rental of land specifically aimed at the construction and operation of photovoltaic installations, as agreements for the establishment of surface right.
In particular, the Supreme Court, confirming what was already stated in the judgments, through several judgments acknowledged the unlawfulness of such requalification, stressing that there is no reason to deny the parties the possibility of choosing, in exercising the private autonomy set forth under art. 1322 Italian Civil Code, whether to pursue similar socioeconomic results, even if not identical, by means of contracts with real effect (“con effetti reali” as the contract to establish the surface right would have been) or by means of contracts with mandatory effect (“con effetti obbligatori” such as the “leasing” contract with assignment of right to build), being legally distinct contractual cases, also by making use of atypical contractual forms, for interests worthy of protection. In other words, the relevant principle that emerges from the judgments is that the private law concepts relating to contractual autonomy do not recede in the face of potential anti-avoidance aims (also not identifiable purely and simply with tax savings) and, therefore, the rental contract for land aimed at the construction and operation of a photovoltaic plant should not be requalified as an agreement establishing a surface right, even if it contains diverse elements that would render it valid as an atypical lease.
Of particular interest, moreover, are the passages in which the judges recall that the interpretation of the agreements provided for by art. 20 of Presidential Decree no. 131/1986 cannot be based on the identification of content different from those obtainable from the contractual clauses, as well as the elements inferred from the agreement presented for registration, neither can it confuse the legal effects, relevant for the purposes of registration tax, with those economic aspects of the agreement transaction, since the anti-avoidance aim, recalled by the Italian Tax Authority, is an aspect unrelated to the provision in question. A possible assessment action, where it intends to pursue such purposes, must be implemented within a specific procedure to guarantee, by means of appropriate and reasoned assessment notice, preceded, under penalty of nullity, by a request for clarification, that the taxpayer may provide within a certain time frame.
Attached are some comments on the judgments published in the specialized press.
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