Real estate news | Superbonus property sales and capital gains. A word from the Notary | MonitorImmobiliare

The 2024 Finance Law (Law of December 30, 2023 n. 213) brings important innovations in terms of capital gains from transfers for consideration of properties on which interventions facilitated by the so-called Superbonus have been carried out. Certain doubts emerge from the text that the National Council of Notaries, with Study no. 15-2024/T, seeks to provide an interpretative response.

News of the 2024 Finance Law and interpretative doubts

With the innovations brought by the 2024 Finance Law, which introduces the letter b-bis) into art. 67 paragraph 1 of the Consolidated Law on Income Taxes, capital gains realized through the transfer for valuable consideration of properties on which interventions facilitated by the so-called Superbonus have been carried out (art. 119 DL n . 34/2000) are included in the different income list.
The logic of the rule aims to avoid the granting of a double advantage, consisting on the one hand in the possibility of carrying out real estate interventions without incurring costs, and on the other hand in the consequent increase in the value of assets themselves.
The news, however, does not list these interventions in a timely manner, and the National Council of Notaries intervenes on this point, whose study, although to be read with caution, represents a useful tool, also taking into account the practical implications that these new things they can have.

Management of capital gains in acts of transfer for valuable consideration

First of all, the management of capital gains in the context of sales, as well as acts of transfer for valuable consideration, is addressed, highlighting the information to which the notary, in practice, must pay attention.
The identification of the taxable person identified as a private transferor is of paramount importance, because he is capable of receiving different income, with the clarification that the capital gain is in any case intended to be applicable to the transferor, even if the expenses for subsidized interventions were supported by a third party. Furthermore, for the establishment of the precondition, it does not matter whether the transferor took advantage of the discount on the invoice or the transfer of the credit.

However, the news does not affect the purchaser who, even in the event of a new transfer of the same property for valuable consideration, remains unaffected.
The real estate affected by this new type of added value are those which have a residential character with their outbuildings, excluding so-called stately residences, to be identified according to the corresponding cadastral category.
Regarding the type of interventions, despite the literal meaning of the law, those carried out on the common areas of the building of which the transferred property is part, and in any case on common property, are considered excluded. According to this approach, interventions generating added value therefore directly concern individual housing or real estate units.
From a quantitative point of view, only interventions facilitated with Superbonus up to 110% are considered relevant, and not those to which a deduction lower than this percentage is applied.
Furthermore, the Cabinet considers it preferable to maintain that, in this case, only interventions involving extraordinary maintenance work in buildings, or relating to restoration or conservative rehabilitation, as well as renovation are included; interventions relating to ordinary maintenance as well as those carried out in vacant buildings remain excluded.
The company then does not consider taxable capital gains in the event of sale of the property on which the work has not yet been completed, since the literal data of the law require the necessary conclusion of the intervention.

All sales, even made for expensive purposes, are not relevant for the purposes of calculating taxable capital gains.
There are in fact specific causes of exclusion, including:

– ten years from the end of the work;
-hereditary origin. There is no discussion as to the exclusion from the scope of the new rule of transfers made by the heirs of property received by the deceased after the conclusion of the work. However, some doubts remain as to the treatment to be adopted once they have implemented the interventions in accordance with Article 119; on the one hand, it seems that the notary must verify the hereditary origin, which in itself is a cause of exclusion; a different orientation, on the contrary, considers that the event, to act as a cause of exclusion, must be the last in the chronology, and therefore subsequent to the moment of conclusion of the work;
-the real estate used as the main residence of the transferor or members of his family during most of the tax period.
-non-benefit of the advantages by the transferor, who was entitled to them.

Method of calculating added value

Concerning the methods of calculating the added value, art. 68 TUIR takes into consideration the cost of purchasing or constructing the property and the consideration arising from the sale.

Among the particular hypotheses to be paid attention to are goods received by donation, for which the purchase price or construction cost borne by the donor is taken into consideration, to which reference must also be made to identify the existence of conditions and causes. of exclusion.

The same article also defines inherent costs, such as those related to the good itself and which increase its value.
For the purposes of deductibility of related costs, certain distinctions must be made:
– if the transferor has opted for the invoice discount or for the transfer of the credit, and less than five years have passed since the completion of the work, these related costs cannot be taken into account for the calculation of the plus -value;
– if five to ten years have passed, these expenses are calculated at 50%.

In the case of the resale of a purchased item benefiting from the reduction on the super sisma-bonus invoice used to deduct the purchase cost, the preferable approach according to the Company is however to regulate the bonus itself as a method of payment for the purchase price of the well and not as an inherent cost.

Identification of the completion date of the work can be carried out using any document used as part of the Superbonus benefits recognition procedure.

Liquidation of the capital gain by the notary

These innovations also impact notarial activity in terms of liquidation of capital gains as well as the drafting of specific clauses.
Even new capital gains cases may be subject to the tax replacing income tax (currently 26%). In this case, the notary, if requested, will be exclusively responsible for the liquidation thereof, and for the calculation of the tax as well as its determinability, he must be based on the documents provided by the party. In the latter case, in fact, the notary cannot be granted any other power of investigation and responsibility regarding the statements made by the party or the documentation produced.

In the absence of an option, the transferor will pay the amount during the tax declaration and it will be sufficient to insert a clause in the deed of transfer concerning the information provided to the transferor, without further details concerning the interventions referred to in art. 119 DL n. 34/2020.

Furthermore, as we have seen, the innovations introduced by the 2024 finance law also imply particular attention to practical implications, such as for example the causes of exclusion, the correct identification of the time elapsed since the end of work, identification of properties falling within the scope of innovations.

The above, in addition to requiring a careful study of the documentation by the notary, also results in the need to prepare an adequate contractual plan and the drafting of specific clauses aimed at responding to the concrete needs identified from time to time.

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