The Court of Cassation rules case n. 3461/21 and rejects the appeal of the Revenue Agency, which held that the registration tax at the 15% rate should be applied in case of constitution of the surface right on agricultural land for the construction of photovoltaic systems by the holder of the surface right.
The Court, confirming its position already expressed in judgement no. 16495 of 2003, states that the registration tax at the rate of 9% should be applied in the present case considering that it concerns the constitution of a right in rem of usufruct and not the transfer of the ownership of the agricultural land.
The Italian Supreme Court considers that the case of the constitution of a surface right on agricultural land would fall within the scope of the first sentence of Article 1 of the Tariff Part One attached to the Presidential Decree 131/1986 (the registration tax law), which states that: "deeds of transferring for consideration of the ownership of real estate in general and transferring or incorporation deeds of rights in rem to use the real estate, including the pure and simple renunciation thereof, the measures of expropriation for public utility and the compulsory transfers: 9%" Contrary to the claims made by the Revenue Agency, according to which the above-mentioned case would instead fall within the scope of the third sentence of article 1 of the Tariff Part One attached to the Presidential Decree 131/1986, which stipulates that:
"If the transfer concerns agricultural land and relative appurtenances in favour of parties other than direct cultivators and professional agricultural entrepreneurs registered in their respective social security and welfare system: 15%".
The Supreme Court's thesis is based on the assumption that the right to build and maintain a construction on another person's land, known as the "surface right", is a "constituted" right and not a "transferable" right. The institution of the "transferring" would materialize only if a construction is built in the exercise of the right of surface and the successor in title subsequently disposes of it.
Given that the third sentence of article 1 of the Tariff Part One attached to the Presidential Decree 131/1986 only concerns the "transferring" of agricultural land, while the first sentence concerns any "constitutive act" of real estate rights, the constitution of the surface right (regardless of the agricultural or building nature of the area on which it is located) is subject to registration tax at a 9% rate.