Claim First house: just the instance of transfer of residence!
For the purposes of the applicability of the first house of subsidy is necessary, among other conditions, that the purchaser is resident (or carries on business) in the municipality in which the property is subsidized or state, actually, to want to transfer his residence within 18 months after purchase.
The requirement of "residence" focuses the Supreme Court order in 3507 lodged at the Court on February 11, 2011.
The ordinance incorporates guidelines of the law relating to the legality of the residence requirement.
is recalled in this regard, note that Article II-bis. 1 Tariff, Part I, attached to the DPR 131/86, requires (among other conditions for the implementation of tax relief) that the property is located, either:
- within the territory of the municipality where the buyer has the residence;
- within the territory of the municipality where the purchaser stabilirà la propria residenza entro diciotto mesi dall’acquisto;
- nel territorio del Comune in cui il contribuente svolge la propria attività, se diverso da quello in cui risiede;
- nel territorio del Comune in cui ha sede o esercita l’attività il soggetto da cui dipende l’acquirente che si sia trasferito all’estero per motivi di lavoro;
- in qualsiasi Comune sul territorio italiano, se l’acquirente è cittadino italiano emigrato all’estero.
Ai fini della verifica della sussistenza della condizione in commento, è indispensabile, pertanto, stabilire in quale momento un soggetto possa definirsi “residente” in un dato Comune.
In proposito, the Court has made clear on several occasions (most recently, see Cass. 18580/2010), for the purposes of this test does not detect the hard fact, but you should refer to the data master.
However, even this last item may raise doubts. Indeed, one may ask whether it is sufficient that the taxpayer within 18 months the City has applied for change of residence, or whether it is essential that the practice for the change of residence has actually been completed successfully. In this regard, the Inland Revenue, in circ. August 12, 2005 No 38 , to assess whether the conditions of residence in the municipality where the property is located, makes it clear that the change of residence shall be counted from the same date in which the person making the statement to the Municipality of transfer of residence, pursuant to art. 18 subsections 1 and 2 of Presidential Decree No 30 May 1989 223. That statement was clarified by the Court, which said that for the enjoyment of subsidy is simply the presentation of the request for change of residence, although it shall not have success (Cass. July 1, 2009 No 15429 ), unless the application is rejected, but is not contested by the taxpayer (Cass. 14399/2010).
Some of these principles are stated in the order 3507/2011, which rejects the appeal of the Revenue, which sought to recognize the fact of loss of the first home for not taking up residence in the town. The order agrees, in fact, the reasons for the ruling of the Regional Tax Commission, taking up the cases in which the tax benefit "is up to those who, despite having made a formal request at the time of purchase of the property have not yet obtained the transfer of residence in the municipality where the property is situated the same. "
Doubts, however, arise in relation to the claim, contained in the order 3507/2011, according to which the term "Valued in action" (ie the period of 18 months for the transfer of residence) would be "purely sollecitatorio" and not mandatory nature, so its course can not attributable to any forfeiture, which instead would be based, according to the Court, only the three-year limitation period provided for in art. 76 of DPR 131/86, a term that, in addition, the Court seems to run, in this case, the date of registration of the act. The statement
surprising for the following reasons:
- firstly, the fact that the decline (in case of missing the deadline of 18 months) is required by Note II-a, which leads to the mendacity in place to make statements (which include also that of the change of residence within 18 months);
- secondly, the fact that the period of three years is counted from the time of registration of the contract and applying the principles laid down by the Supreme Court ruling in 1196/2000, since the hypothesis of "falsehood occurred" a period of three years starting in each case only the date on which the fulfillment of the condition becomes impossible (or, in this case, just the course of 18 months required by law to implement the transfer of residence).