Company ALFA (hereinafter referred to as “Company,” “Applicant,” or “Taxpayer”), operating in the processed meat and meat products sector, states that it achieved most of its revenue at the operational headquarters located in …, where technologically advanced buildings and facilities were also realized through a financial leasing contract.
However, on …, a vast fire almost completely destroyed the entire facility in …, leaving the property in ruins and degradation, classifying it as a “collabente” to be categorized in the cadastral category F/2. The competent authorities have imposed the demolition of the entire structure, debris removal, and soil remediation, with a total cost of approximately € ….
The Applicant declares that, also due to explicit contractual obligations and agreements with the Leasing Company, it is necessary to transfer the “collabente” property from the lessor company, i.e., company BETA, to the user company ALFA.
The leasing contract in question was signed on …, and as of the date of the incident, …, the remaining capital debt amounted to a total of € …, including the ordinary redemption of € …
Clause 17 of the general conditions of the financial lease states that: “I) This contract shall be deemed terminated by law on the date on which the event occurs, in the event of destruction of the property… II) In the event of destruction of the property, the User shall have the obligation to become the purchaser of the land, the ruin, and any other right related to a taxable price equal to the compensation referred to in the subsequent Clause 23); this taxable price shall be payable with currency corresponding to the date on which the event occurs and, therefore, the contract shall be terminated, regardless of the date on which the notarial deed of sale is executed.”
Subsequent Clause 23, titled “Compensation for the Lessor,” provides that in all those cases where reference is made to compensation due to the Lessor and the compensation is not determined, it must be quantified as the “sum of all those instalments not yet due as of the date of the termination of the contract and the price of any final purchase…”
The Applicant adds that it has taken out an insurance policy with an insurance company (DELTA), which also covers the risk of fire, with an appendix of lien in favor of the lessor company.
Due to the need to proceed with the notarial deed of transfer of the land and the “collabenti” buildings from the lessor company to the user company, the Applicant requires clarification on the nature of the “corrispettivo” (consideration) or “indennizzo” (compensation) of the amount to be paid to the leasing company and the potential value to be subject to VAT.
The first interpretative doubt raised by the Applicant company concerns the qualification of the amount to be paid to the leasing company. According to the Applicant, if it were considered a “corrispettivo,” i.e., the price of the land and the “collabenti,” VAT would be applied to the entire amount, as it would be a sale of goods under Art. 2 of Presidential Decree 633 of 1972. In this case, the VAT paid by the taxpayer company to the leasing company should be considered deductible under Art. 19 of Presidential Decree 633 of 1972.
If, on the other hand, the amount paid to the leasing company were considered “indennizzo” (compensation), the operation should be excluded from the taxable base under Art. 15, paragraph 1, No. 1) of Presidential Decree 633 of 1972 (see Answer No. 588 of December 15, 2022).
A third option could be to consider the amount to be paid to the leasing company partly as “corrispettivo” and partly as “indennizzo.” In the present case, the market value of the area would correspond to € …, against an estimated cost of the works of demolition, removal, and remediation of € …. Consequently, the value to be declared in the notarial deed of the “collabente” property should be € ….
Finally, if the amount to be paid to the leasing company were to be considered a reimbursement of a financing, the operation could be considered exempt under Art. 10, paragraph 1, No. 1) of Presidential Decree 633/1972, unless excluded from tax under Art. 2, paragraph 3, letter a) of the same decree.
Source: gov.it
