The transfer of real estate for consideration may be subject to different tax rules depending on the tax applicable to the transfer itself. More in particular,
- if the sale of the property is subject to VAT (by obligation or by option), the tax baseas established by thearticle 13, paragraph 1, Presidential Decree 633/1972,”is formed from the total amount of the fees due to the transferor or lender according to the contractual conditionsincluding the charges and expenses inherent to the execution and the debts or other charges towards third parties borne by the transferee or the client, increased by additions directly connected with the fees due from other parties”;
- if the assignment is subject to registration taxthe tax base is governed byarticle 43, paragraph 1, Presidential Decree 131/1986 (TUR), whose letter. a) establishes that “for onerous contracts translating or constituting real rights from the value of the asset or right at the date of the deed or, for acts subject to a condition precedent, approval or homologation, on the date on which the related translational or constitutive effects are produced”. Where the Office believes that the value of the property is higher than that determined by the parties, it may proceed to ascertain the greater valueaccording to the rules established in thearticle 52, Presidential Decree 131/1986.
L’article 1, paragraph 497, L. 266/2005establishes that “then derogation from the regulations referred to inarticle 43 of the consolidated text of the provisions concerning the registration tax, referred to in the decree of the President of the Republic of 26 April 1986, n. 131, and without prejudice to the application of article 39, first paragraph, letter d), last sentence, of the decree of the President of the Republic of 29 September 1973, n. 600, for only transfers to natural persons who are not acting in the exercise of commercial activitiesartistic or professional, concerning properties for residential use and related appurtenancesat the time of the transfer e upon request of the purchasing party made to the notarythe taxable base for the purposes of registration, mortgage and cadastral taxes is made up of value of the property determined pursuant toarticle 52, paragraphs 4 and 5, of the aforementioned consolidated text referred to in the decree of the President of the Republic n. 131 of 1986, regardless of the agreed fee indicated in the deed. However, the parties have the obligation to indicate the agreed consideration in the deed. The Notary fees are reduced by 30 percent”.
The reported regulatory provision contains the discipline of the CD. “price-value” which allows you to apply a “subsidized” tax base in real estate transactions subject to registration tax in the presence of certain conditions. For the application of “price-value” the following conditions are required:
- the assignment must take place in respect of natural persons who do not act in the exercise of commercial activities, artistic or professional (subjective requirement);
- the transfer must have as its object a property for residential use and related appurtenances (objective requirement);
- the purchasing party must inform the Notary, at the time of the transfer, of the willingness to make use of the regime in question, with a specific request to determine the taxable base using the cadastral value;
- the parties must indicate the agreed fee in the act.
The application of the price-value rule brings with it a further advantageso long as prevents the verification action of the Financial Administration for determining a greater value of the property. In fact, thearticle 52, paragraph 5-bis, Presidential Decree 131/1986 (inserted by Legislative Decree 223/2006), limits the inhibition of rectification powers of the Financial Administration only at “sales of properties and appurtenances (….) governed by article 1, paragraph 497, Law 266/2005”, that is, to those to which the price-value is applicable. Outside of these hypotheses, the Offices always have the possibility of rectify the value or consideration indicated in the act by the partiesif so lower than the actual value of the property. According to the Study of the National Council of Notaries 5.9.2006, n. 117-2006/T, the reference contained in paragraph 5-bis of thearticle 52, Presidential Decree 131/1986to the transfers regulated by thearticle 1, paragraph 497, L. 266/2005would entail the inhibition of the rectification powers of the Financial Administration in all property transfers with the requirements for the application of price-valueeven where specifically the buyer has not opted for the determination of the tax base with this institution.
