"NEWS of September 12, 2016-the gain from lease back is taxable for competence"

Posted by on Sep 12, 2016

The "sale and lease back" – or simply "lease back" how frequently is defined – represents a contract under which a person with financial cause atypical sells an asset at a leasing company in order to get it back via under finance lease; This operation is performed in order to obtain liquidity.

The main hurdle to overcome in using such a contract consists of a location far from uncontroversial of the revenue that the gain that is realized and that is recognised in the income statement on the basis of the duration of the contract (in accordance with article 2425-bis cod. CIV.) however it should be taxed, at most, in five years under article 86, paragraph 4, of the tax code. On point has an interesting (and totally understandable) recent opinion of the Supreme Court which, in contrast, would allow the deduction by virtue of the principle of derivation.


The accounting treatment

In accordance with the principle of substance over form under article 2423-bis cod. CIV., article 4 paragraph 2425-bis, determines that "the gains from trade execution with lease to seller shall be broken down according to the duration of the lease".

Therefore, by giving prominence to the fact that the contract of lease back substantial terms, is a financing operation, the gain (if any) made by the transferor shall be imputed to the income statement on a straight-line, depending on the duration of the lease and, therefore, financing. This allows, in fact, leaving the budget for each year of the financial component-only contract.

The tax treatment

In relation to this particular contract, the Agency intervened on more than one occasion, highlighting how the contract is to be divided into two autonomous operations, the sale and subsequent financial lease (C.M. # 218/E/2000).

In particular, according to the circular. 38//2010, the ordinary rules of article 86 notes appreciation of the tax code, and is taxable in full in the year for disposal, or to pay by installments in five tax periods, including that for disposal, if the asset is held for at least three years, as stipulated in paragraph 4 of that article 86. Reads as: "given that the amendment to article 2425-bis of the Italian civil code has not been accompanied by a corresponding change in the area of taxation, are confirmed the principles expressed in circular No. 218 of 2000 and in subsequent practice papers mentioned above, according to which the tax regime applicable to capital gains arising on a sale and lease back must necessarily be that laid down in article 86 and article 109, paragraph 2, lett. a) of the tax code. Therefore, the gain contributes fully to the formation of taxable income in the year in which it is made or, if the conditions provided for by law, in constant rate in that year and the subsequent but no later than the fourth (cf. resolution of August 25, 2009, n. 237/E) ".

The argument put forward by the Agency has been the subject of widespread criticism from legal literature; in particular the circular No. 2/2007 of the study centre of the Union of young Accountants stressed the unity of the lease back, resulting in the detection of positive component (appreciation) over the life of the contract, in the case of related component costs represented by leasing.

This, among other things, also reflects the principle of business income derived from results of the budget, in accordance with article 83, paragraph 1, of the tax code, and is endorsed by CTP of Modena of January 12, 2011, n. 5, just for the aforementioned principle of derivation, which according to the lower courts must prevail for the taxation of capital gains.

In other words, we can conclude that article 86, paragraph 4, of the tax code by providing for taxation in the year or divided into 5 exercises, aims to provide a benefit when the gain is a matter of one year; certainly cannot be seen as a disadvantage when accounting recognition already the capital gain on the basis of article 2425-bis cod. CIV., turns out to be spread over several years. In this case, in fact, already the derivation principle governs how spontaneously taxation. The fact that in the present case is not regulated INCOME does not mean that we should apply the provisions of article 86, but instead leads to the need to apply the general principle of derivation.


The position of the Supreme Court

Consists on the theme a recent position of Cassation (judgment of August 23, 2016 35294, criminal section) that allow you to find a solution to the problem much closer to the accounting treatment planned for the contract of sale and lease back: in a nutshell, since accounting recognition on positive component is allocated over the entire contractual period, similarly positive income components shall be subject to such taxation. It reads "we must now add that on the chance, granted to the taxpayer, to" dilute "the capital gain obtained from the sale of goods constitutes an exception to the ground of jurisdiction provided for in article 109, TUIR; which explains (and explains) the burden of making your choice in the tax return (article 86, paragraph 4, TUIR). The breakdown of the amount financed for the duration of the "sale and lease back" is consistent with the actual cause of the contract, so that the assimilation of such funding to consideration by an ordinary sale constitutes an unjustified forcing that misses a expressed coding and prevents dangerous analog applications also expected other declarative end burden, article 86, paragraph 4 , INCOME TAX CODE ".

The above is definitely the crux of pronunciation which is based upon two consideration absolutely condividibili:

  • Article 86, paragraph 4, prediction of the tax code is an exception to the principle of competence of article 109 of the tax code. This means that it is applicable when, in accordance with the principle of competence, the gain is recognised in the accounts in a single year, precisely that which yielded good;
  • Article 2425-bis of the Italian Civil Code provides a breakdown of the appreciation which is justified by the cause of the contract, namely the objective to finance the enterprise, and the characteristics of the same. Therefore, you cannot apply the discipline of subparagraph 4 of article 86 of the tax code that has instead presupposes a real supply of goods. Only in the latter case the gain is attributed entirely to the exercise that alienated the good and, so, is no reason to apply the discipline, which is approved, contained in article 86, paragraph 4, repeatedly invoked TUIR.

Fabio Garrini