Cassation: no to the IMU exemption

Cassation: no to the IMU exemption even in the presence of payment of school fees even for amounts that cover only a part of the service.

The sentence originated from the appeal against a sentence of the CTR of Tuscany of an ecclesiastical body that manages an equal school and which had opposed the assessment notices relating to ICI/IMU for the years from 2010 to 2015.

The entity, which had defended itself by invoking the exemption pursuant to article 7, lett. i) of Legislative Decree no. 504/1992, had won in the first instance but the CTR, upon appeal by the Municipality, had overturned the sentence.

According to the law cited, are exempt from the tax "property used by the persons referred to in Article 73, paragraph 1, letter c), of the consolidated income tax law, referred to in the decree of the President of the Republic of 22 December 1986, no. 917, and subsequent amendments intended exclusively for the non-commercial performance of welfare, social security, health, scientific research, teaching, accommodation, cultural, recreational and sporting activities, as well as the activities referred to in article 16, letter a), of the law 20 May 1985, n. 222".

The Cassation, with the Ordinance n. 35123/2022, published on 29/11/2022, reaffirmed the principle already supported by the previous jurisprudence according to which for the application of the exemption both the subjective requirement, i.e. being a subject of a non-commercial nature, and the objective requirement, i.e. the exclusive use of the property for the exercise, in a non-commercial manner, in this case, of educational activities. And in the opinion of the Judge of legitimacy, in the case subject of the ruling, the objective requirement for the fact that the students of the school pay fees on average higher than 50% of the cost of the service, remaining totally irrelevant "the circumstance of obtaining or not a and to effectively balance costs with revenues”.

The jurisprudence of legitimacy appears increasingly consolidated in the deny the right to exemption from the municipal tax whenever the building is intended to house educational activities with payment of fees to be paid by users, even for amounts such as to cover only a part of the cost of the service provided, noting that the third paragraph of the art. 4, of the Ministerial Decree 200/2012, considers the teaching activity carried out in a non-commercial manner where the activity is "... carried out free of charge, or upon payment of fees of a symbolic amount and such as to cover only a fraction of the actual cost of the service, also taking into account of the absence of relationship with the same" and that the same European Commission, with the Judgment of 12/19/2012, in paragraph 172, considered that the educational service provided by non-commercial entities in compliance with the criteria dictated by the said Ministerial Decree 200/2012, "... cannot be considered an economic activity".