One of the questions, which very often is asked by our readers or which are addressed to professionals during the course of the professional activity, concerns the payment ofsingle municipal taxcommonly known by the acronym IMUin the event of non-possession of theimmobilefor example, in the case where a house is illegally occupied.
In other more specific terms, the question is often asked: in any case, is one required to pay the IMU even when the real estate unit is occupied without the owner’s consent?
It is clear and evident that we are not in the hypothesis of imu leased property. In this case, in fact, it is known that the owner, that is the landlord, is in any case required to pay the tax.
In the event that the property is available to third parties against the consent of the owner, the situation raises critical profiles, due to the absence of a clear regulatory directive by the tax legislator.
This legislative gap has inevitably fueled an intense litigation, which has seen the pronouncement of a volatile and very often divided jurisprudence.
IMU assumption and exemptions
As is known, the imposition of the IMU is represented by the possession of the property.
And in fact, both art. 8 paragraph 2, Legislative Decree no. 23/2011 and subsequently paragraph 740 of art. 1, L. n. 160/2019, established that the prerequisite for the tax is the possession of real estate.
In general, the distinction between the right of ownership and possession is clear and evident.
It is known that ownership is a real right that allows you to enjoy and dispose of things in a way full and exclusive (art. 832 c.c.).
Possession, on the other hand, is the power over the thing that manifests itself in an activity corresponding to the exercise of property or other real right (Article 1140 of the Italian Civil Code).
On the interpretation of the concept of ownership of the property for IMU purposes, there have been often conflicting or, in any case, not univocal jurisprudential approaches.
On the one hand, the case law of merit favorable toImu exemption for lack of realization of possession and, on the other hand, the jurisprudence of legitimacy, firm in considering the tax always and in any case due, even in the case of illegally occupied property.
EIMU exemption: favorable thesis in case of illegally occupied property
As noted, the national jurisprudenceto date, it is split up two orientations diametrically opposite.
The firstconfirmed on several occasions by the trial courts (provincial tax commissions and regional tax commissions, from 16 September first degree tax court and second degree tax court of justice), aimed at affirming the non-debt of the tax in situations of illegal employment, for violation of the general principle of ability to pay pursuant to art. 53 of the Constitution.
The request for the payment of a tax, relating to a property which is not available for reasons completely unrelated to the owner, without the prior stipulation of a contract, violates the constitutional provision (Lombardy Regional Tax Commission 23 October 2019 n.4133 / 1/19).
According to this orientation, the IMU would be due only when the owner of the real estate has not been deprived of possession and the occupant is missing the cd thethe spirit of having the thing for himself (Provincial Tax Commission, Rome 13 December 2017, no. 26532; in accordance with Tuscany Regional Tax Commission, 19 January 2022 no. 67).
IMU example: unfavorable thesis in the event of an illegally occupied property
As anticipated, di different notice the tax jurisprudence of legitimacy has appeared for years (Court of Cassation, tax section), which has always confirmed the tax liability.
Following ainterpretation strictly literal of the normwhich does not include the illegal occupation of the property among the reasons for imu exemption, the Court of Cassation has always considered the tribute due by the owner despite the non-existence of objective possession and the impossibility of disposing of the property, because it is illegally occupied, given that the assumption of the tax would be attributable to the power over the thing which occurs in an activity corresponding to the exercise of ownership pursuant to Article 1140 of the Italian Civil Code, while the mere detention (Cass., 25 October 2021 n. 29868).
Imu exemption for property illegally occupied, what to do?
In order to settle this complex issue that occurs very frequently in daily life, it would be necessary a clear intervention on the part of the Tax Legislatorin fact aimed at transferring the tax subjectivity for IMU purposes from the owner to the occupier.
In the meantime, it is certainly considered appropriate to put in place all the protections provided for by the law in order to be able to regain possession of the property.
From a fiscal point of view, the Street more precautionarywhich over the years Italian taxpayers undertake to have the right toIMU exemption in any case, it provides for the payment of the amount due for the purposes of the single municipal tax, with reference to the occupied real estate unit without title.
This for avoid that the competent municipal body issues a assessment noticewith related interests and penalties and possible tax charges pending at the Collection Agent, and possibly formulate refund requestdemonstrating the unavailability of the property, because it was occupied against the will of the taxpayer / owner.
Against the negative response from the Municipality, various judgments have been initiated with the competent judge, within which a specific request for referral to the constitutional court could be formulated, for the Court of Laws to rule on the constitutional legitimacy of the reference rule of the IMU subjectivity, in the part in which it does not provide for the exemption in the event of an abusive occupied property.
Source: LAVORINCASA.it by www.lavorincasa.it.
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