What are the taxes due for the purchase of a home and what are the rules governing them? Michele Pizzullo, Fimaa Legal Advisor, answers in a webinar dedicated to the topic.
When buying a house, taxes are mainly related to the following stages of the process:
Registration of the purchase proposal
The proposal itself, explains Pizzullo, consists of a unilateral declaration of will from the person who intends to enter into a contract and presents the essential elements of the contract to which it is directed; as a pre-negotiation deed, the purchase proposal falls outside the scope of the joint and several registration obligations and the related payment of the registration tax charged to real estate brokers by art. 10, paragraph 1, letter d-bis) of the TUR.
The proposal, in the absence of acceptance, can only lead to the emergence of a pre-contractual liability, but is not suitable for producing the typical legal effects to which it is directed, therefore it has no negotiating nature. Even acceptance, in itself, constitutes a unilateral pre-negotiation declaration of will that does not constitute the conclusion of the contract. In accordance with art. 1326 of the Italian Civil Code "The contract is concluded when the person making the proposal is aware of the acceptance of the other party".
Irrevocable purchase proposal
With reference to the contractual clauses included in an irrevocable purchase proposal (Article 1329 of the Civil Code), for the Revenue Agency, it must be considered that the obligation of registration and payment of the related tax on the part of the mediator arises from the moment in which it is accepted the purchase proposal and within 20 days of acceptance, regardless of the signing of a subsequent preliminary contract, provision deemed aimed only at reproducing an already concluded contract in a safer form.
The accepted purchase proposal is to be considered a contract which, having a patrimonial nature, needs to be registered regardless of the consideration that the first preliminary could be followed by a "second preliminary", by virtue of an agreement with which the parties undertake to conclude a subsequent contract. This can also provide for only mandatory effects (and with the exclusion of specific execution in the event of non-fulfillment, pursuant to Article 2932 of the Italian Civil Code), with the clear intention of the parties to completely redefine the negotiation regulation with the stipulation of a subsequent contract. preliminary. Otherwise the validity of a repetitive agreement would be denied.
The notary in the purchase of the house
The request for registration of the second preliminary, within 20 days of acceptance of the proposal, which includes the first preliminary, or makes the same reference, fulfills, but only in this case, also the obligation to register it. lastly, pursuant to and by effect of art. 11, n. 7, of the Presidential Decree 131/1986; if stipulated after this registration deadline, there is an obligation, both for the contracting parties and for the mediator, jointly and severally, to register both preliminaries.
Even if the second preliminary is drawn up by a notary in the form of an unauthenticated private agreement, as called to intervene only as a legal consultant, in the twenty days from the conclusion of the first preliminary, the obligation to register and pay the related tax to the second preliminary, within the term provided for the first preliminary, it is up to the parties to the contract (even to only one of the obliged subjects) and to the mediator and frees the other co-obligated persons (including the mediator) by right, constituting fulfillment of the same obligation (art. 1292 of the Italian Civil Code). It should be remembered that in this case, since it is an unauthenticated private agreement, the notary is not obliged to register pursuant to the Presidential Decree 131/1986, although he can take care of its fulfillment on behalf of the parties. Basically, the purchase proposal must always be registered in order to avoid fiscal and also civil consequences.
Authenticated private deed or public deed
In this case, the obligation to register and pay the related taxes would rest exclusively with the notary, with the specification that, in the event of failure to register the "first preliminary" within the terms of the law, the notary notary could not refer to it in any way and the mediator and the parties would be in default.
Transcription of the preliminary contract
The transcription of the preliminary contract a valid precaution, explains Pizzullo, is given to the promissory buyer by the transcription of the preliminary contract of sale, provided for by art. 2645-bis of the Italian Civil Code, according to which the preliminary contracts concerning the conclusion of one of the contracts referred to in nos. 1), 2), 3) and 4) of the art. 2643 of the Civil Code, even if subject to conditions or relating to buildings to be built or under construction (see Legislative Decree 122/2005), must be transcribed if they result from a public deed or private deed with signature authenticated or judicially ascertained.
The art. 2645-bis of the Italian Civil Code however, makes the occurrence of said reservation effect (as well as all other effects) of the transcription of the preliminary subject subject to two conditions: that the transcription of the definitive contract or of the judicial request pursuant to art. 2932 of the Italian Civil Code takes place within one year from the date agreed between the parties for the conclusion of the definitive contract; and that the transcription of the definitive contract or other deed constituting, in any case, the execution of the preliminary contract or of the judicial request pursuant to art. 2932 of the Italian Civil Code, pursuant to art. 2652, paragraph 1, n. 2, of the Italian Civil Code, takes place, in any case, within three years from the date of the transcription of the preliminary.