Enabling Law for Tax Reform: Extending Dry Coupon Regime to Non-Residential Property Leases

The enabling law for tax reform, just published in the Official Gazette, contains an interesting novelty for the real estate sector. Among the “principles and guiding criteria for the revision of the personal income tax system” (article 5), there is in fact “the possibility of extend the dry coupon regime to the leases of properties used for purposes other than residential use where the holder is a business owner, an art or a profession”.

In essence, it is a question of applying the Irpef replacement regime introduced in 2011 by the Berlusconi government to non-residential rentals for “residential property units rented for residential use”. With a rate of 21%, reduced first to 19%, then to 15% and finally to 10% for leases with an “agreed” rent on the basis of agreements stipulated in the municipal seat between the owners’ and tenants’ organizations. Compared to the text presented by the government, the Parliament has inserted a limitationproviding for a subjective requirement for the lessee (it must be – as seen – a business, art or profession) which, frankly, was not felt necessary, especially since it is an enabling law.

The introduced principle is important. The need for proportional taxation (flat, we would say now) for this type of location has been felt for a long time. It is significant that it is demonstrated by the representatives of both contractual parties, owners and operators. Even the latter, in fact, have realized that excessive taxation on landlords damages the tenants themselves. The sum of Irpef, municipal Irpef surtax, regional Irpef surtax, Imu and registration tax (to mention only the most relevant items) leads to such an exorbitant burden as to produce inevitable consequences on the level of rents and on the very possibility of meeting between demand and supply of real estate.

After all, and this is what many do not understand and many others pretend not to understand, rental income has peculiarities that do not allow its assimilation to other types of income and which justify a different tax treatment. Two elements in particular have a strong impact. On the one hand, the maintenance costs of the asset, which are increasingly significant, also due to existing or threatened obligations (think of the proposal for a “green case” directive). On the other hand, the contractual obligations, which in the case of leases for uses other than residential use are absolutely timeless. Suffice it to read, in this regard, what is reported in the report accompanying the decree-law with which, in 2014, he established – limited to leases with an annual rent exceeding 250 thousand euros (even if the original text contained the figure of 150 thousand, then increased parliamentary seat) – to contractually regulate the terms and conditions of the relationship, notwithstanding the law of the fair rent of 1978, thus “making full use of private autonomy”, said the same report.

“The discipline in force – explained the government document – dates back for the most part to the original law on fair rent (law n. 392 of 1978) and, despite some reform interventions, continues to present significant elements of rigidity that have no equal in the main European countries. The evolution of the economic system has also led to the observation that the original protection requirements, which a priori saw the lessee as the “weak contractor”, are largely outdated. The current binding discipline limits the freedom of the parties to freely regulate the relationship, predetermining it in many essential elements (for example constraints on the duration, mandatory cases of withdrawal of the tenant, limitations on the possibility of freely providing for the methods of revision of the rent, mandatory cases of pre-emption, etc.). Such rigidities make investments less attractive in the Italian market compared to foreign markets and constitute a brake on the development of the market for commercial leases and properties for tourist use”.

Holy words, which nonetheless accompanied a law which – as anticipated – provided for removing the rigidities and constraints denounced by the executive of the time (led by Matteo Renzi) only for a very limited part of the lease contracts, probably those that needed it least . The novelty of the fiscal delegation fits into this picture, which follows an experiment launched in 2019, when the option for the dry coupon (at 21%) was envisaged, by the first Conte government (at the instigation of the League), only for contracts stipulated in that year and limited to commercial premises of cadastral category C1 and with area up to 600 square meters.

The word now passes to the delegated decrees, within which the principle introduced in the enabling law will be translated into a binding law. The aspects to be defined will be different: new or existing contracts, properties involved, tax rate, but also necessary distinctions with respect to the coupon valid for residential leases. In the legislation concerning the latter, for example, the owner waives the right to request, for the entire duration of the option, rent updateeven if it is stipulated in the contract.

In the case of leases for non-residential use – for which the duration is, in fact, left to the choice of the tenant (the law provides for 12 or 18 years depending on the activities carried out on the premises but contains mechanisms such as to prevent any freedom for owners to close the contract even after these very long durations) – a rule of that type would condemn the new tax system to failure.

Giorgio Spaziani Testa, 17 August 2023

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2023-08-17 12:00:46
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