Buying your first home represents a significant moment for married couples, especially when you want to take advantage of the tax breaks available. However, the law imposes specific requirements to benefit from these benefits, requirements which are essential even when the spouses are under a legal community of property regime.
According to a recent order of the Court of Cassation (n. 26703 of 14 October 2024), both spouses must be present at the notarial deed to make the required declarations, even if the purchase is formally made by only one of the two.
But why is it so important for both spouses to be involved? And what are the implications for those who do not comply with this condition?
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Mandatory declarations
The benefits for the purchase of the first home are granted provided that the buyer respects certain conditions, formalized through declarations to be made at the time of the notarial deed.
These conditions, outlined in note II-bis of article 1 of the Tariff of the Consolidated Law on registration tax, do not only concern the person involved in the deed, but also the other spouse, in particular when the couple is under of legal communion.
- Non-ownership of other properties in the same municipality: This requirement, indicated in letter “b” of note II-bis, provides that none of the spouses must possess real rights of ownership, use, usufruct or habitation on other homes located in the Municipality in which the property they intend to purchase is located. . Even if only one of the spouses is formally involved in the act, the verification is extended to both, since legal communion implies a sharing of assets acquired during the marriage.
- Non-ownership of properties purchased with “first home” benefits throughout the national territory: Letter “c” of note II-bis also establishes that none of the spouses, either individually or by shares, must own properties already acquired with the “first home” incentives on a national scale. This declaration aims to ensure that the tax benefit is actually intended for those who do not have other habitable properties already purchased with similar benefits.
These declarations are essential to obtain the application of the preferential rate, which translates into a registration tax reduced to 2% (compared to the ordinary rate of 9%) for purchases not subject to VAT, or to 4% ( instead of 10%) if the purchase is subject to VAT. Without such declarations, tax benefits may be revoked pro rata or, in the most serious cases, in full.
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The judicial case: the ruling of the Court of Cassation
The specific case that led to the recent order of the Court of Cassation n. 26703 of 14 October 2024 concerns a deed of assignment of accommodation to a couple under the legal community of property regime, issued by a housing cooperative. In this context, only one of the spouses had formally signed the purchase deedrequesting the application of the reduced VAT rate of 4% on the entire value of the property.
However, during the checks, the Revenue Agency considered that the tax benefit was not applicable in full, maintaining that even the non-participating spouse should have made the declarations referred to in note II-bis. Consequently, the Agency partially revoked the benefit, limiting it only to the portion pertaining to the signatory spouse.
This decision was contested by the spouses, who supported the validity of the request for relief on the entire property, appealing to article 177 of the civil code, according to which purchases made by one of the spouses under the legal community regime automatically extend to other.
However, the Court reaffirmed that, despite the presence of the community property regime, the tax legislation specifically requires that both spouses make the declarations required to obtain the relief.
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Declarations from both spouses are essential
The Court of Cassation confirmed that, for the purposes of obtaining the “first home” benefits, legal communion is not enough to automatically extend tax benefits to both spouses. According to the judges, in fact, the participation of both spouses in the notarial deed is necessary to guarantee that the declarations required by law are made by both.
The Court cited previous sentences (n. 1988/2015 and n. 14326/2018) which had already established this principle, reiterating that the automatic extension of property rights in legal community cannot be considered an exception to the tax rule.
In this context, the Court clarified that the nature of the legal community of assets – according to which every purchase made by one of the spouses automatically also belongs to the other – does not exempt from compliance with the specific tax provisions for the benefit. In fact, the tax law requires that, at the time of purchase, both spouses declare that they do not own other homes and have not already benefited from the “first home” benefits.
This formal declaration obligation is considered a substantial requirement to obtain the benefit, and cannot be circumvented by virtue of the chosen property regime.
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The revocation of benefits
The decision of the Court of Cassation of limit the tax benefit to the spouse’s share only who signed the purchase deed highlights the consequences of failure of both spouses to participate in the notarial deed.
In practice, in the case in question, the Revenue Agency revoked the part of the relief that would have been due to the spouse not present at the deed, applying the full share of VAT on that part of the property. This means that, if one of the spouses does not intervene and does not issue the required declarations, the tax benefits will only be granted for the part purchased by the signatory spouse.
This interpretation has important implications for couples in legal communion who wish to purchase a first home. In fact, the failure to present both at the notarial deed could lead to an increase in unexpected tax costs. The tax regime provides for a substantial difference between the preferential rate and the ordinary one: while the reduced VAT applies at 4% for concessions, the ordinary rate is 10%, with a significant economic impact for the buyer.
