Selling your first home before the age of five
When a taxpayer sells a home purchased with first home benefits before five years from purchase, there is a risk of forfeiture of the benefits obtained.
In this case, the taxpayer will have to return the registration taxesmortgage and cadastral in their ordinary measure, together with a 30% surcharge.
This principle is enshrined in the Consolidated Law on Registration Tax (TUR) atarticle 1, paragraph 4, Note II-bis, of Presidential Decree no. 131/1986. However, the legislation provides a possibility of protection: within one year of the sale, the taxpayer can purchase another property to use as a main residence, thus avoiding the loss of benefits.
The usufruct is not sufficient to avoid the forfeiture of the benefits
Be careful though, not all forms of purchasing allow you to maintain the benefits. In particular, the purchase of real rights of enjoyment, such as right of usufruct on another property, it’s not enough to avoid forfeiture of benefits. This was reiterated by the Revenue Agency in answer no. 192 of 4 October 2024.
The legislation, in fact, explicitly requires the purchase of right of full ownership of the property to use it as a main residence. Only this type purchase meets the conditions required by the TUR to maintain the benefits.
Regulatory references and jurisprudence
The Consolidated Law on registration tax precisely establishes the conditions to avoid the forfeiture of the benefits. The law specifies that ordinary taxes and penalties apply if the property purchased with the benefits is transferred for a fee or free of charge before the five-year period. However, if within one year the taxpayer purchases another property to use as a first home, these provisions do not apply.
The Constitutional Court, with theordinance no. 46/2009and the Court of Cassation, with various rulings, including theordinance no. 11221/2020have confirmed that the purchase of real rights of enjoyment, such as usufruct, does not fall within the category that allows you to maintain the first home concessions. In fact, the law does not explicitly extend its effects to purchases of real rights of enjoyment, but refers exclusively to the purchase of ownership of a property.
Revenue clarification
In the answer no. 192/2024the Revenue Agency clarified that the term “purchase” refers to the acquisition of the right of ownership of the property and not the real right of enjoyment, such as usufruct or right of residence. Consequently, it is not possible to maintain the first home benefits if, following the sale of the property, the taxpayer only acquires a real right of enjoyment on another property.
Furthermore, the Agency specified that the forfeiture of the benefits also involves the non-recognition of the tax credit.
Pursuant to thearticle 7, paragraph 1, of law no. 448/1998the tax credit is not available to the taxpayer who has lost the first home benefit, as clarified by the circular no. 38/2005. Therefore, the taxpayer cannot use the tax credit to pay the registration tax on the new purchase, nor can he use it to reduce the Irpef in the tax return.