In this regard, the Court of Cassation has consistently held that the establishment of surface rights does not involve a transfer of ownership of the land, but merely the establishment of a real right of enjoyment, subject to a 9% stamp duty rate, rather than the 15% rate applicable to the transfer of ownership rights (see, among many others, order no. 27293 of 22 October 2024).
This interpretation was also adopted by the Revenue Agency in Resolution No. 23/E of 3 April 2025, which definitively superseded the previous interpretation, which was more onerous for taxpayers, putting an end, at least for the future, to a long period of uncertainty regarding its application.
However, from a practical point of view, the question arose of recovering the amount unduly paid in the event that the notary, as the person liable for tax, paid the registration tax following the notification of a settlement notice addressed exclusively to him with a request for payment limited to 6%, given that the 9% rate had already been paid at the time of registration. In this scenario, the Revenue Agency - on the basis of a certain jurisprudential orientation - continues to refuse reimbursement to the taxpayer.
Finally, in a recent ruling, the Tax Court of Palermo (judgment no. 335/2026) upheld the appeal of an operator in the renewable energy sector, recognising the right to a refund of the registration tax unduly paid in relation to contracts establishing surface rights on agricultural land, even in cases involving a notary.
The dispute arose from the rejection by the Revenue Agency of multiple requests for reimbursement submitted pursuant to Article 77 of Presidential Decree No. 131/1986, relating to contracts entered into for the construction of plants for the production of energy from renewable sources. These contracts, which were multi-year contracts, had been subject, as a precautionary measure, to registration tax at a rate of 15%, instead of the 9% rate applicable to the establishment of real rights of enjoyment.
The taxpayer had therefore requested a refund of the excess tax paid, but the tax authorities had refused, arguing that the payment of the higher tax, for some of these cases, had been made by the notary following settlement notices. According to the Office, this payment, which was not challenged by the notary, should be classified as acquiescence to the tax claim, with the consequent preclusion of any possibility of reimbursement for the parties to the deed.
The Sicilian Court clearly rejected this interpretation, affirming a principle of particular practical relevance: the notary, as the person responsible for the tax, cannot be confused with the actual taxpayer. His intervention responds to the need for certainty and speed of collection, but does not affect the ownership of the tax relationship, which remains with the person who has the ability to pay and bears the actual economic burden of the tax.
According to the judges, the payment made by the notary, often imposed by the need to avoid personal penalties and professional liability, is purely technical in nature and cannot be classified as acquiescence. Acquiescence, in fact, presupposes a clear and conscious willingness to waive the right to appeal, which cannot be inferred from a fulfilment due to professional reasons. It follows that such payment cannot preclude the taxpayer's right to contest the merits of the taxation and to request the refund of the unduly paid tax.
The ruling also emphasises Article 77 of the Consolidated Law on Registration Tax, clarifying that the right to request a refund belongs to the person whose assets have been materially affected by the levy. A different interpretation would result in a clear lack of protection, in contrast with the constitutional principles of effective defence (Article 24 of the Constitution) and ability to pay (Article 53 of the Constitution), as well as exposing the legal system to the risk of undue enrichment of the Treasury.
In this context, the decision of the Tax Court of Palermo is particularly significant because it addresses one of the most controversial aspects of the transition phase: the fate of refund requests in cases where the payment of the higher tax was made through a notary. On this point, the ruling helps to restore a proper balance between the Treasury's collection needs and the protection of taxpayers' rights.
In conclusion, the ruling confirms that an error in the interpretation of tax legislation cannot be borne by the taxpayer and that the “technical” payment made by the notary is not sufficient to preclude the right to a refund of the unduly paid tax. This is a further significant step towards legal certainty and greater uniformity of treatment in a matter that has long given rise to disputes and inconsistent applications.
