The granting of surface right on agricultural lands is subject to registration tax at the rate of 15% and not 9%, as well as mortgage and cadastral taxes at the fixed amount of Euro 50: this was clarified by the Italian Tax Authorities by answer to Ruling no. 365 of 3rd July 2023, overruling (sic!) the interpretation adopted by the Italian Supreme Court in its decision no. 3461 of 2023.
Art. 1 of the Tariff (part I), of Presidential Decree no. 131/1986 (Registration Tax Code), provides for the application of registration tax the following rates:
"Transfers of ownership of immovable properties in general and transfers or constitutions of rights in rem, (...): 9%.
(...)
If the transfer relates to agricultural lands and their annexes
in favour of persons other than direct farmers and professional
agricultural entrepreneurs, registered in the relevant social
security and welfare administration: 15%. (...)".
According to the first paragraph registration at the rate of 9% is expressly provided for, as well as for deeds transferring ownership of immovable property in general, also for deeds transferring or constituting rights in rem, including granting of surface right.
Therefore, based merely on the provisions of the law, granting of surface right (even on agricultural land) is subject to registration tax at the ordinary rate of 9%, as provided for in the first paragraph.
The following paragraphs establish the taxation applicable to the "transfer": among them, the third paragraph refers to the transfer of agricultural lands and sets the rate at 15%.
According to the Italian Tax Authorities' argument the tax treatment of the granting of surface right on agricultural land should be attached to the hypothesis of the "transfer" of agricultural lands, the rate of which is 15%, in place of the ordinary rate of 9%.
This interpretation (already adopted by Resolution no. 92/E of 2000 and by Circular of the Italian Tax Authorities no. 18/E of 2013) was (fortunately!) overtaken by the legitimacy case-law (the latest: Italian Supreme Court, decision. no. 3461 of 11th February 2021). The latter, indeed, clarified that the granting of a surface right on agricultural lands was subject to registration tax at the ordinary rate of 9%, in place of the 15%, since it did not qualify as the constitution of a right in rem upon "transfer".
But sadly, the Italian Tax Authorities are taking a step-back. Will multiple litigations follow? We'll keep you posted.
Originally published 14 July 2023.
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