In the case of properties leased for commercial purposes, the rents not received must in any case be declared and taxed. Let’s study the case.
The Court of Cassation, with theOrdinance n. 20661 of 09/29/2020, clarified the criteria for the taxation of rents, for a property not used as a dwelling, where not collected. In the present case, the Provincial Tax Commission had rejected the taxpayer’s appeal against an assessment notice for 2008 income tax. The taxpayer had appealed against this decision and the second instance judge had accepted it, believing that the income tax was not due in relation to uncollected fees. The Inland Revenue had therefore appealed to the Supreme Court, denouncing the erroneous application of Article 23, paragraph 1, of Presidential Decree 600/73 (now 26), envisaged only for residential properties.
The decision
According to the Supreme Court, the censorship was well founded. The judges point out that the income from properties leased for non-residential purposes is identified in relation to rent at least as long as the relative contract is in effect. With the consequence that, as long as the contract is not terminated, or the eviction is validated, even the fees not received for arrears constitute taxable income. The criterion for attributing this income, notes the Supreme Court, is in fact in this case constituted by the ownership of the right in rem, regardless of its actual perception. The Court therefore concludes, stating that, in the case of properties leased for commercial purposes, the rents not received must in any case be declared and taxed. Taxation according to the cash principle is therefore not envisaged for these income, but according to the accrual principle.
Remarks
It should be noted that, for rental contracts for residential properties signed starting from January 1, 2020, the rules have recently been amended. The rents (for residential properties) not collected may not be subject to taxation starting from the moment of the eviction for arrears, or of the payment order. Thus it was in fact established by art. 3-quinquies of the Dl. 34/19, which modified art. 26 Tuir. In line with this regulatory change, it is then envisaged that any collection of fees not received in previous years is subject to separate taxation pursuant to art. 21 of the Tuir. And therefore with a rate coinciding with half of the total net income of the previous two years. As for the taxes paid on the fees not received, as ascertained in the judicial procedure for the validation of eviction, a tax credit of the same amount is still recognized.
For leases for use other than housing (cadastral category C1; D1; A / 10 etc.), therefore, a penalizing taxation principle persists today. In this case, the landlord is in fact obliged to declare the income as agreed in the contract, even if the rents have not actually been received. And this at least until a cause for termination of the contract has occurred. And the taxes paid for uncollected fees cannot be recovered in the form of a tax credit.
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