IMU illegal properties: Cassation confirms payment obligation, even after demolition order

The case examined by the Court

The ruling concerns the case of a bankrupt company that had challenged a TASI assessment notice for the year 2014 issued by Roma Capitale. The properties covered by the act had been subject to seizure orders, demolition orders and denial of amnesty by the Municipality itself.

The bankruptcy trustee maintained that the real estate units were legally removed from the full availability of the property and that, in the presence of the demolition order, the taxation should apply exclusively to the land area, therefore to the building land, as happens for buildings under construction. At first and second instance the appeal was rejected, and the Court of Cassation confirmed the judgment.

IMU always due for the registered building

The sentence recalls the art. 2, paragraph 1, letter. a), of Legislative Decree no. 504/1992, according to which a building relevant for ICI (and subsequently IMU/TASI) purposes means the real estate unit registered, or which must be registered, in the urban building register.

The cadastral registration, therefore, constitutes the sufficient prerequisite for the subjection of the property to the tax, since for the purposes of the tax the relevant moment is the completion of the works relating to the construction, regardless of the issuing of the certificate of habitability, which as such is not a necessary prerequisite for the application of the IMU. On the basis of this assumption, any comparison between illegal properties with demolition orders and buildings under construction is therefore excluded.

In practice – underlines the Court – the art. 13 of Legislative Decree 201/2011 which provides for taxation based on the value of the area for buildings under construction, cannot be applied to completed buildings and, as such, duly registered, regardless of whether or not they have a certificate of habitability, and have been declared illegal and subject to a demolition order. On the contrary: “the tax is due solely for the fact that land registration has been carried out, with everything relating to the actual habitability of the property or its urban planning or sanitary characteristics remaining outside the scope of the tax relationship”

Property without usability does not equate to property that is unusable

The legislation – the Court noted – does not require the urban planning regularity of the property nor its habitability among the tax conditions. And in this specific case, moreover, the request to reduce the tax by 50% (as foreseen for unusable properties) cannot even be taken into consideration as properties affected by building defects cannot be assimilated to unusable properties.

The unusability that allows the tax reduction is related to the temporary impossibility of using the property and should not be understood as a legal quality that can be overcome with the issuing of the habitability certificate. To consider a building unusable or uninhabitable, in fact, there must be a physical degradation that has occurred (ruined, unsafe, dilapidated building) or functional, structural and technological obsolescence that cannot be overcome with ordinary or extraordinary maintenance interventions, according to the requirements of the art. 24, paragraph 1, of Presidential Decree 380/2001.

The demolition order does not produce fiscal effects

Finally, the taxpayer cannot invoke the fact that he only has the right to the building area burdened by the demolition order of the illegal properties and therefore no longer has any rights on the building, to recalculate the tax only on the value of the area. In fact, according to the Court of Cassation, until the demolition is physically carried out, the right of ownership over the building remains with all the related tax obligations. The effect is determined only following the actual acquisition which presupposes the physical demolition of the artefact.

Operational consequences

For technical professionals who assist owners of illegal properties, the ruling imposes a clear approach in consultancy: no urban planning irregularity exempts them from paying municipal tax. Anyone who has carried out illegal works must budget for the obligation to pay the IMU until the moment of physical demolition, regardless of the outcome of the amnesty procedures or sanctioning proceedings.

For the Municipalities, the sentence strengthens the position in the assessment activities: the cadastral registration constitutes a sufficient element to legitimize the tax claim, without the need to verify the state of conservation or the urban planning regularity of the property.