Agricultural land, capital buildings and taxation

Pregnant were the changes introduced by Law Dec. 28, 2015, no. 208 (so-called Stability Law 2016) on the payment ofIMU (Single Municipal Tax) on agricultural land, where certain objective and subjective characteristics are met. In short, an exemption from paying this tax was provided for direct farmers and professional agricultural entrepreneurs, as well as for all mountain or hillside land identified by Circular No. June 14, 1993. 9 of the Ministry of Finance.

IMU is nothing more than a direct property-type tax applied to replace the old Municipal Property Tax (ICI).

It should be noted that although there was already an exemption of payment of property tax for agricultural land, it followed a complex method as it was linked, first, to the provisions set forth in D.D. Nov. 28, 2014 and related to the altimetric criterion for the identification of land subject to exemption and later to the provisions of D.L. 4/2015, which provided for classification according to Istat data and no longer the altimetric criterion.

Now Art. 13 (a) of the 2016 Stability Law in fact stipulates that “As of the year 2016, the exemption of IMU, provided for in subparagraph (h) of paragraph 1 of Article 7 of Legislative Decree Dec. 30, 1992, no. 504, is applied based on the criteria identified in Ministry of Finance Circular No. 9 of June 14, 1993.”.

If one were to stop at a superficial reading of that circular, one could simply report that it includes the list of 6,301 municipalities recognized as exempt from the payment of property tax, while a clarification needs to be made – of no small significance – regarding the actual exemption of individual lands located in those municipalities.

In fact, the list provides for so-called “partially delimited” municipalities, i.e., municipalities whose municipal territory is only partially covered by the exemption measure and for which it will – in fact – be necessary to carry out a case-by-case check on individual plots.

The main novelty of the stability law, however, was the provision of the exemption from the payment of IMU, regardless of their location, of land owned and managed by individuals who are direct cultivators of the land, as well as by professional agricultural entrepreneurs (IAPs), provided that they are regularly enrolled in the appropriate INPS social security lists.

Also included in the exemption is land “located in the municipalities of the smaller islands listed in Annex A annexed to Law Dec. 28, 2001, no. 448” and those “with unchanging agro-silvopastoral use with indivisible and inusuctible collective property.

In light of the above, only agricultural land owned by persons who are not direct cultivators or professional agricultural entrepreneurs will remain subject to the payment of IMU, with the application of the ordinary rate of 0.76 percent (modifiable by each municipality up or down within the limit of 0.3 percentage points, by municipal resolution) on the dominical income resulting as of January 1 of the reference year, moreover even if the land should be or remain uncultivated.

A different matter should be made with reference to the exemption of IMU payment for instrumental rural properties, as defined under Law no. 133 of 1994.

The identification of this type of building is made easy by the detailed provision in Art. 9 paragraph 3 of Decree Law No. 557/1993 (converted into Law No. 133/94), where it is stipulated that the characteristic of rurality, for tax purposes, must be recognized to all instrumental constructions necessary for the performance of agricultural activity as described in Art. 2135 c.c., with particular reference to those intended:

• To plant protection;
• To the preservation of agricultural products;
• to the safekeeping of agricultural machinery, tools and supplies needed for cultivation and farming;
• To the breeding and housing of animals;
• to the farmhouse;
• to dwelling of employees engaged in agricultural activities on the farm on a permanent or fixed-term basis for an annual number of working days in excess of one hundred, hired in accordance with current employment regulations;
• To persons engaged in the activity of mountain pasture in the mountain area;
• For farm office use;
• to the handling, processing, preservation, enhancement or marketing of agricultural products, even if carried out by cooperatives and their consortia referred to in Article 1, paragraph 2, of Legislative Decree No. 18 May 2001. 228;
• To farming in closed farmstead.

The aforementioned buildings must necessarily be stacked in category D/10 (Special Purpose Buildings – “Buildings for productive functions related to agricultural activities“) or, where registered in different categories, bear the “characteristic of rurality” in the cadastral documents, with the clarification that the so-called luxury housing (cat. A/1, A/8, A/9) will not be able under any circumstances to be considered rural instrumental.

The exemption from IMU payment of such buildings was introduced by Law no. 147 of December 27, 2013 (Stability Law 2014), by virtue of which (Art. 708, l. 147/13) as of tax year 2014 the subjection to the payment of IMU-but not TASI-for all rural buildings for instrumental use ceased to exist, contrary to the previous two years where the exemption was limited to rural instrumental buildings distinguished at the NCT of municipalities classified as mountainous according to the Istat list.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo