With the recent ruling of the Court of Cassation (sentence no. 26604 of 09.09.2022), the Judges specified that it does not lapse from the first home facilitation the taxpayer who, before the expiry of 18 months from the purchase, has forwarded a request for a ruling to the tax authoritiesto ask if, in your case, the transfer of residence should take place within 18 months of the deedor in a different term, taking into account that the building was not completed.
Pursuant to Note II-bis ofarticle 1 of the Tariff attached to Presidential Decree 131/1986, the private buyer can take advantage of the facilities described above in the presence of the following conditions:
- the property is located in the territory of the municipality in which the buyer has or establishes his residence within 18 months of purchase (the declaration on the commitment to transfer the residence must be expressed under penalty of forfeiture in the deed) or, if different, in that in which the buyer carries out its businessor, if transferred abroad for work reasons, in the one in which the person on which he depends is based or carries out the activity (or, in the event that the buyer is an Italian citizen who emigrated abroad, that the property is purchased as a first home on Italian territory);
- in the deed of purchase, the buyer declares that he is not the sole owner or in communion with his spouse of the rights of ownership, usufruct, use and residence on another house in the territory of the municipality where the property to be purchased is located;
- in the’deed of purchase the buyer declares to not be a holder, not even for shareseven in the regime of legal communion throughout the national territory of the rights of property, usufruct, use, housing and bare ownership on another house purchased by the same person or by the spouse with the “first home” benefits.
Focusing on the requirement that imposes the transfer of residence to the municipality where the property is located, in the case referred to in sentence no. 26604/2022 the taxpayer had purchased a property under constructionundertaking to transfer the residence within 18 months.
Before the expiry of the term, however, he had forwarded to the Revenue Agency a request for a preventive ruling asking whether, since it is a property under construction, the 18 months for the transfer would start from the deed or from a different timebeing told that, in the case of “rustic” purchases, the term (18 months) for the transfer of residence starts from the completion of the works.
The actual transfer of residence, therefore, had taken place a little less than three years after the deed. In this context – affirms the Court of Cassation – the notice issued by the Revenue Agency to ascertain the forfeiture due to failure to transfer residence within 18 months is not legitimateas the response to the preventive appeal has binding effect for the financial administration with reference to the case under question.
For the sake of completeness, it should be noted that relating to buildings under constructionfirst the law (Cassation n. 7259/1995, Cassation n. 8163/2002 and Cassation n. 18300/2004) and then theFinancial administration (circular 38 / E / 2005) they have the applicability of the “first home” benefits recognizedprovided that the property under construction is present potentially the characteristics of the non-luxury property suitable for residential use.
However, with the reply to question n. 357/2019the same Revenue Agency has better clarified that the “first home” benefit cannot be applied to the purchase of collaborating unitsland registry classified F / 2, being totally or partially unusable buildingscharacterized by a considerable level of decay which determines the inability to ordinarily produce income.
In application of these principles, it was consequently except that the “first home” discount could be applied having regard to the purchase of a group of 4 ruined trulli with adjoining chicken coop and storage (classified F / 2 in Land Registry), which the buyer intended to renovate and use as a main residence.