Court of Cassation: the blurred border between the sale of a building to be demolished and the sale of a building plot
In the case in question, the tax payer sold an old building to a real estate company, receiving in exchange two apartments to be built in place of the abovementioned building. The agreement provided for a complex of apartments with relative appurtenances should be built in the land on which the building was located, and that two of these apartments would become the property of the seller.
The Inland Revenue Agency notified an assessment notice reclassifying the building purchase contract as a sale of building plot with the consequent taxation of the capital gain realized ex article 67 paragraph 1 lett. b) TUIR. The Revenue Agency, giving preference to substance rather than form, motivated the notice of assessment by claiming that in the contract was clear the intention to demolish the building and to build the new complex of apartments.
It is recalled that, pursuant to art. 67 TUIR 1 paragraph lett. b) capital gains realized by the sale of building plot are taxable in any case.
The Court of Cassation with the sentence February 21, 2019 n. 5088 stated that it is not possible “to charge the seller of the building, built on already built land, a well-known capital gain, even if only commensurate with the additional building capacity not yet developed”
It is not the first time that the Court stated in these terms. In fact, already in the sentences nn. 15629/2014, 15631/2014, 4150/2014 and 7853/2016, the Supreme Court reiterated the fact that in order to qualify capital gains it should not be emphasized that a building is destined or not to be demolished. Otherwise all the building areas would be considered subject to capital gains that did not fully develop the building potential of the land on which they insist. With reference to this sentence, the following principles of law are listed:
- the distinction between “built” and “not yet built up” arises in terms of alternative exclusion which logically does not allow a tertium genus;
- the sale of a building can not be requalified as a transfer of the building land below, even if the building does not fully absorb the building capacity of the land on which it insists;
- in the sale of a building, the stipulation of the parts to demolish and rebuild, even with a wide volume, can not be requalified as a sale of building plot;
- the general power of the Inland Revenue Agency to reclassify a legal transaction finds a limitation when the legislator established for the sale of buildings and for the sale of building plots a different tax regime.
It is hoped that the further position taken by the Supreme Court can definitively decree the erroneous interpretation on the art. 67 1 paragraph lett. b) TUIR expressed by the IRS in resolution AE n. 395/2008.