"NEWS September 8, 2016-Imu paid by owner in patrimonial Fund"

Posted by on Sep 8, 2016

In a previous posting we got to remember how the income from the property on which capital is funded are charged for 50% in favour of each of the spouses, regardless of ownership of real estate from which such income emanate: this under prediction contained in article 4 INCOME TAX CODE, which has specifically to do so.

Whereas it is necessary to check the subjectivity IMU (but the same arguments apply to the TASI, given the similarities in the rules for the identification of taxable persons), there is no exception to the General forecast that locates in the holder of the right in rem over the property the person required to pay the toll.

IMU and patrimonial Fund

The Constitution of the Fund assets involves the application of a constraint on a property in order to place it at the service of the needs of the family; said property, as a side effect (but this is often the main objective) cannot be attacked by third parties.

The Fund assets may be formed by one of the spouses, by both spouses or by a third party. If the Fund is made up of only one of the spouses, this may transfer property to the other spouse's share or not; Similarly, if the Constitution is done by a third party, this may transfer or not the spouses.

As said article 4 TUIR provides a specific rule for apportioning income derived from assets subject to patrimonial Fund, while there is no similar prediction IMU purposes and therefore it must be concluded that the municipal tax should be paid entirely by the owner, as a single taxable person of the tribute. Article 3 of Legislative Decree 504/1992 (ICI, but applicable for reference also to the IMU) as well as the D.L. 201/2011 leave no any hypothesis of derogation to the principle on the basis of which the tax is to be paid by the holder of the right in rem over the property.

For example, if the husband is 100% owner of a property and this will constitute a patrimonial Fund without transferring ownership, income from that property will be taxed at 50% on each of the two spouses, while the IMU should be paid entirely by the husband.

To remember that, as a result of the introduction of municipal tax, there will be a replacement effect IMU-PERSONAL INCOME TAX, which exempts from taxation land commercial real estate located on which local tribute is paid.

One wonders however whether this replacement effect also applies to the spouse who is not the owner of the property on which consisted the bottom sheet; Although there is no official confirmation on the point, it seems legitimate to give positive response. Beyond logic, which lays in this respect, such a conclusion you can reach by observing how the standard itself does not require the coincidence between taxable persons IMU and PERSONAL INCOME TAX, but only establishes that the municipal tax replaces, for the real estate component, income tax of individuals and their land due in relation to income relating to additional assets not leased.

Therefore, if previously outlined, the wife must pay the INCOME TAX on 50% of the cadastral income because the IMU entirely paid by the husband will absorb not only their own PERSONAL INCOME TAX, but also that of your spouse.

If the property was the primary residence of the spouses, evidently the IMU will not be due, regardless of whether the property is transferred or not within the Constitution of the Fund assets; you will still need to verify the requirements (coincidence of abode and residence) as set out in article 13 D.L. 201/2011 to consider said property main house for IMU.

Could arise some doubts for TASI, for the share holder (determined by the municipality in a split between 10% and 30% of the total tax due); where the TASI is due on the property affected by the bottom sheet, the non-owner spouse still has the qualification of holder. Therefore, assuming a property other than the principal residence and not located (ex: the Beach House), the 50% share of the keeper should be borne by the non-owning spouse.

I imagine that the municipality in question will have nothing to say if said payment was carried out entirely by the owning spouse, also due to the fact that such a passive assessor subjectivity is clear from the documents (and therefore should be communicated by the taxpayer).

Fabio Garrini