You benefit of subsidy for buying a first home, in which the act of buying interest both spouses in the regime of community legal, even if only one of them has a requirement of the standard required for the use of the benefit.
The facility involves the application of the tax benefits set out in Article 1 (Tariff Part I, II note-bis) of Presidential Decree No 26 April 1986 131.
These concessions on the purchase of a residential building permit to serve a registration fee, or alternatively VAT, with the application of a reduced rate, and to pay the mortgage and land taxes on a fixed rather than proportional representation.
The Tax Section of the Supreme Court (Judgement No. 2109/2009) has determined that for the enjoyment of tax benefits for buying a first home, "the requirement of residence in the municipality where the property is situated should be reported to the family, with the result that, in the case of joint estate of husband and wife, what matters is that the property purchased is intended for a family home, while the contrary is irrelevant to the fact that one spouse has a residence in that municipality, and in any case in which the property has become an object of communion art. 177 cod. Civ., then the case is separate purchase in case of joint purchase of the asset. "
The Supreme Court has in fact shown that in terms of registration tax and its benefits for the purchase of the 'first home', the residence requirement should be reported to the family, so if the property purchased is used a family residence, does not detect the different residence of the spouse who has bought in the regime of community (Cass. 13,085 in 2003 and already Cass. No 14237 of 2000).
In particular, the Court has had occasion to state that the spouses do not have a common residence registry, but only to social housing (Article 143 of the Civil Code), then an interpretation of the tax law (which, moreover, speaks of residence and not registered residence) in accordance with the principles of family law to acknowledge the co-habitation with the spouse as part sufficient to satisfy the requirement of residence for tax purposes
(Cass. No 14237 of 2000, cit.).
that matters, then, is not the residence of the individual spouses as those of his family as a whole: the art. 144 cc, according to which the spouses "fix the residence of the family while on the one hand recognizes that spouses may have different requirements for the individual residence, the other tends to favor needs of the family as a subject independent of the spouses, so also the tax rule should be read and applied in the sense that it becomes the overriding interest of the family than the individual spouses, for which the yardstick of the requirements to get the benefit must be different given the presence of another entity, such as family (Cass. No 13085 of 2003, cit.).
In conclusion, under these principles, it can be assumed that, for the enjoyment of tax benefits, the requirement of residence in the municipality where the property is situated should be reported to the family, with the result that if of joint estate between spouses, what important is that the property purchased is intended for a family home, while it is significant that one spouse has a residence in that municipality, and in any case in which the property is now the subject of communion art. 177 cod. Civ., then the case is separate purchase in case of joint purchase of the property.
Robert Peter Sidoti
Lawyer
info@studiolegaleassociatisidoti.it
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