"NEWS of September 6, 2016-meaning of motionless for territoriality VAT real estate services"

Posted by on Sep 6, 2016


Starting next January 1 2017 will come into force new rules to locate the territoriality Vat of real estate services, referred to in article 7-c) (a) of P.r.decree 633/1972, it being understood that the policy will be that of the place of location of the property. In accordance with article 13 ter of Regulation No 1042/2013 (Amendment of provisions of regulation 282/2011) are considered real property:

  • a specific part of the soil, in surface or underground, on which it is possible to establish rights of ownership and possession;
  • any building or building erected on or embedded to it above or below sea level, which is not easily removable easily removable nor;
  • any item that you have installed and form an integral part of a building or a building and failing which the building or the building is incomplete, such as doors, Windows, roofs, stairs and elevators;
  • any element, appliance or device permanently installed in a building or in a building that cannot be removed without destroying or altering the building or the building.

Concerning the definitions contained in article 13 ter the document prepared by the European Commission in October 2015 offers some food for thought, although not binding on Member States. As required by (b)), to be considered a building, the building or the building should not be easily removable or cleanable. This condition in some cases requires clarification, just think of the houseboats that are used for conducting business activities (e.g. a restaurant), or buildings with prefabricated parts meant to be removed and subsequently re-used elsewhere. In the aforementioned document reads that a building or a building can be erected and incorporated to the soil by different means, such as cement or immobilized with ropes, chains, bolts, etc. What matters is not the means but the result, it is necessary to consider building the good that is not easily removable or cleanable, i.e. when the goods cannot be removed easily without effort and without facing significant costs. The term "easily removable or movable" may create some difficulty since the adverb "readily" could express a subjective concept. In this sense, the EU Commission document suggests taking the following objective criteria: the need to make use of expertise about the usage of tools, equipment, knowledge, etc., needed to dismantle or move right, the cost of operations necessary for dismantling or moving, the time it takes to perform, namely the fact that as a result of these operations, the well could destroy or alter its value.

You may also consider using the structure as a permanent or non-permanent: for example, a kiosk-bar set into the ground to be used only temporarily cannot be considered a real estate, while if the same is used on a permanent basis for the task then is to be regarded real estate, since the anchorage into the ground assumes a finality.

As for the letter c), shall be regarded as immovable property even the constituent parts of the building or the building, including the elements that are installed and which form an integral part thereof, and in the absence of which the building or the building is incomplete. In some circumstances, the Commission's document, you will need specific elements to make the building or the building suitable for specific use, such as a fume extractor in a factory, or the security elements in a prison. In other words, they must be regarded as part of the building those elements whose removal would result in a change in the nature of the building or the building itself, in such a way as to compromise their use for the function for which it was designed.

With regard to point d) of article 13 ter, which considers real estate any other element, appliance or device permanently installed in a building or in a building, "which cannot be removed without destroying or altering the building or the building", we refer to the elements, equipment or device that, even though they are fixed to the building or the building, do not lose their individuality or structural integrity asset allocations, so are simple to maintain its completeness even in the absence of such items. Those factors, however, are to be regarded real property if they cannot be removed without destroying or altering the building or the building on which they are installed. The expression "permanently installed" refers to items that are installed to perform a specific purpose in a building or in a building and that is meant to last or remain unchanged.

Another critical aspect pertains to the assessment of destruction and alteration. In this regard, the Commission notes that for destruction means the action or process that causes damage such that the building or the building no longer exists or cannot be repaired. In this area should therefore re-enter those situations where the building or the building suffered severe damage or substantial physical changes due to the removal of the elements installed in it permanently. Alteration, however, is a less drastic change and involves a significant change in the nature or composition. Thus, the alteration will be irrelevant for elements simply hanging on the walls, nailed or screwed to the ground or the walls, the removal of which leaves simply tracks can easily be repaired.

by Sandro Cerato