Although of primary interest as a common topic that concerns the majority of people at a certain stage of their lives, the discipline to be adopted in such circumstances, and therefore in cases of acts of generosity between parents and children, until a few days ago was far from clear.
To eliminate any aspect of uncertainty on this point, the Supreme Court had to intervene, called upon to express its opinion on an appeal presented by a private individual, brought following the receipt of a payment notice from the Revenue Agency for failure to pay the tax. donation tax.
The Court of Cassation, with the Sentence no. 7442 filed on March 20th, it definitively establishes the exclusion of the taxability of informal and indirect donations between parents and children.
The Judgment just cited therefore represents a real turning point, enunciating a definitive principle and canceling any different or contrary interpretation. The most contrasting "current" and which overlapped with the new lines defined by the Ermellini decision, was a circular from the Revenue Agency itself, n. 30 of 2015, with which the latter believed that the ordinary taxation in the matter should also be applied to informal donations.
The Supreme Court does not consider this circular acceptable, on the contrary. In the dense elaboration of the Sentence n. 7442, defines it as "imprecise and incomplete".
The result is therefore the reversal of the regulation, thus excluding the possibility of applying any taxation on all informal and indirect donations not resulting from a written deed and which are not subject to registration. In short, the treasury will no longer be able to demand any payment of gift tax on acts of generosity such as money transfers, characterized by the absence of the need to provide them with a written deed.
Having said this, it seems necessary in any case to specify how our legislation provides that donations - always in the presence of its fundamental prerequisites such as spirit of liberality e the enrichment of one part in the face of the impoverishment of the other – “more substantial” and therefore not of modest value, must come forward to the Notary, with a public deed.
However, different situations may arise in which the act of donation does not require particular formalities.
These are precisely the cases involved in the ruling in question, described precisely by the Court of Cassation itself to avoid any incorrect interpretation or inaccuracies in the future.
Therefore, with indirect donations must be understood as those provisions which, even if drawn up in a written document, do not necessarily follow all the formal requirements envisaged for donations described by the art. 769 of the Civil Code and, therefore, are not documents subject to registration. For example, a parent who purchases a property on behalf of their child, paying the price directly to the seller. The informal donations instead they consist in carrying out a material activity, such as the transfer of money by passing cash from one person to another, or by bank transfer or bank draft, etc.
The Judges further specify that the obligation to pay taxes on donations occurs exclusively at the moment of registration of the deed establishing them, or at the moment in which the donation is declared to the tax authorities. Therefore it is clear that for indirect donations, resulting from a written deed for which registration is not mandatory, the subjects involved will be able to optionally choose to register it and pay the taxes, or avoid doing so by saving on the aforementioned payment.
Therefore, if there is no obligation to register, the prerequisite for the application of any tax is consequently also eliminated.
However, with regard to informal donations which do not result from any written document, they will be subject to taxation only if declared by the taxpayer in the event of a tax assessment. The power to ascertain indirect donations - as recalled in the sentence in question and as provided for by art. 56 bis of the TU on inheritances and donations - can be exercised by the tax administration only when two requirements are met:
- the existence of indirect donations results from declarations made by the interested party in the context of a procedure aimed at assessing taxes;
- the donations resulted, alone or together with those already made to the same beneficiary, in an increase in assets exceeding one million euros.
In light of the very recent ruling of the Court of Cassation, therefore, on donations between parents and children where there is no obligation to register, taxes are not paid.
But be careful: the tax exemption we are talking about is not valid without limits. And in fact the legal rate will in any case be applied in the event that the value of the donation exceeds certain deductibles: €1M for spouse and relatives in a straight line (which extends up to 1.5M for disabled people) and € 100.000 for brothers and sisters.