Informal donations and indirect donations without tax because there is no obligation to register: taxation is triggered only if these donations result from deeds subject to registration or if they are registered voluntarily or if, having a value exceeding one million euros, their execution is declared by the taxpayer in the context of a tax assessment procedure. This is what is established by a ruling from the Tax Section of the Court of Cassation which Il Sole24Ore writes about today.
In sentence no. 7442 of the Supreme Court, Revenue Circular 30/2015 is analyzed and defined by the stoats as “not acceptable”, “inaccurate” and “incomplete” in the part in which it states that the gift tax applies to “donations between living people that are characterized by the absence of a written document (subject to registration)”.
The tax ruling starts from the Consolidated Law on “inheritance and gift tax which provides that donation deeds – as stated in the article in the economic newspaper – are subject to registration and the non-application of gift tax in certain cases of indirect donations (i.e. those in deeds of sale when the price is paid by a person other than the buyer), after having, however, begun by stating that the application of the tax” on donations remains «without prejudice to indirect donations as well resulting from documents subject to registration”. From these elements the Court of Cassation deduces “that the indirect donation is relevant for the purposes of gift tax only if it results from acts subject to registration.
It follows, therefore, that, for example, informal donations (not stipulated in writing, nor set out in a written deed) are not a possible object of taxation and do not fall within the calculation of the exemption of one million euros, unless the “voluntary” registration of the donation itself is carried out or that the donation not resulting from acts subject to registration is “confessed” by the taxpayer in the context of a tax assessment procedure”. The question remains whether, for the indirect donation resulting “from deeds subject to registration” whether or not there is an obligation to register the deed in question also as a donation.
“The Court of Cassation responds negatively by observing that, when the Consolidated Law deals with the taxation of indirect donations, it enunciates the two principles already mentioned above: the “right” of the taxpayer to carry out voluntary registration and the “power” of the administration to ascertain the indirect donations only if two conditions are met: when the existence of the donation (of a value exceeding one million euros) results from declarations made by the interested party in the context of tax assessment proceedings. If, therefore, the “power” – concludes the article – the financial administration can only ascertain indirect donations if the aforementioned two conditions are met, evidently there is no generalized obligation to subject all indirect donations resulting from deeds subject to registration to taxation”.
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