The Court of Cassation has established that anyone who voluntarily requests the registration of a deed is subject to the resulting taxation, whether fixed or proportional, even if it is not a substantial part of the operation.
This principle, established by the ruling n. 13807 of 17 May 2024, raises important questions regarding the tax responsibilities of those who participate in the Registration of legal acts.
What happens if a third party, unrelated to the main transaction, decides to register the deed? Is it right for him to bear the tax burden? And how are these rules reconciled with the principles of tax fairness?
Let’s find out more about this complex legal affair that involved several companies and led to an important legal clarification.
The case study
The specific case concerned a leasing contract stipulated in 2005 between two companies, a grantor and a user, for an instrumental property. In 2014, the user company transferred the leasing contract to a third company via an unauthenticated private deed.
The company that owns the property, despite not being a substantial party to the deed, requested registration of the contract, paying the fixed registration tax of 200 euros, since the agreed fee was subject to VAT.
The tax office, in a subsequent inspection, issued a liquidation notice to recover the proportional registration tax provided for by Article 8-bis of the tariff attached to the Tur, applying a rate of 4%. This provision applies to deeds relating to the transfer of financial leasing contracts of instrumental properties.
The company that requested registration contested the liquidation notice, arguing that, as it was not a substantial part of the deed, it should not be required to pay the tax. This thesis was accepted both by the Provincial Tax Commission (CTP) of Udine and by the Regional Tax Commission (CTR) of Friuli Venezia Giulia.
The Supreme Court’s decision
However, the Court of Cassation overturned the previous decisions, recalling articles 8 and 57 of the Tur. Article 8 allows anyone who is interested to request the registration of a deed by paying the relevant tax.
Article 8 – Voluntary registration
Anyone interested can request the registration of a deed at any time, by paying the relevant tax.
Article 57 instead identifies the subjects obliged to pay the registration tax.
The Court underlined that anyone who voluntarily requests the registration of a deed is obliged to pay the taxthus extending the obligation also to voluntary registrants.
The judges of the Court of Cassation have highlighted that the rule provided for by Article 8 of the Tur, which allows anyone interested to request the registration of a deed, must be interpreted extensively. This means that the person requesting registration, even if not a substantial contractual party, assumes a tax obligation comparable to that of the parties directly involved in the deed.
Furthermore, the Court reiterated that the registration tax has an essential function in the Italian tax system, ensuring the monitoring and transparency of economic transactions. The extension of the payment obligation to third parties is seen as a means to avoid tax evasion and ensure that all relevant transactions are subject to correct taxation. The judges also underlined that the principle of alternatives between VAT and registration tax, although applicable, does not exempt from the verification of further proportional taxes that may emerge from subsequent controls.
In light of these arguments, the Court expressed the principle of law according to which “whoever voluntarily requests the registration of a deed is also required to pay the relevant tax, whether fixed or proportional, even if it is not a substantial part of the relationship”. This principle emphasizes the importance of fiscal responsibility and the impossibility of escaping tax liability through simple non-substantial participation in the act.
Conclusion
Sentence no. 13807 of 17 May 2024 establishes a fundamental principle of law: “Whoever voluntarily requests the registration of a deed is also required to pay the relevant tax (either fixed or proportional) even if it is not a substantial part of the relationship”. Therefore, the right to register a deed is accompanied by the obligation to pay the tax, strengthening the principle of fiscal responsibility.