With Circular no. 14/E of 6 June 2020, the Revenue Agency provided clarifications regarding the measure referred to in article 28 of the decree law of 19 May 2020, n. 34, which in paragraph 1 provides: that "to persons carrying out business, art or profession activities, with revenues or fees not exceeding 5 million euros in the tax period preceding the one in progress on the date of entry into force of the present decree, a tax credit is due in the amount of 60 percent of the monthly amount of the rental, leasing or concession fee for non-residential properties intended for the performance of industrial, commercial, artisanal, agricultural, tourist interest or the habitual and professional exercise of self-employment". The subjects admitted as beneficiaries of the tax credit by paragraph 4 also include non-commercial entities, including third sector entities and civilly recognized religious entities (relative to the cost incurred for the «rental, leasing or concession fee of buildings for non-residential use intended for carrying out the institutional activity»).
Subjective scope of application
According to the Revenue Agency, which cites circular no. 9/E of 13 April 2020, the legislator intended to extend the benefit in question to all entities other than those that exercise, predominantly or exclusively, an activity as a company on the basis of the criteria established by article 55 of the TUIR. In consideration of the combined provisions of paragraphs 1 and 4, the aforementioned subjects can benefit from the aforementioned tax credit, even in the hypothesis in which the entity carries out, in addition to the institutional activity, also a commercial activity, in a non-prevalent way or exclusive. In summary: the possible performance of a commercial activity in a non-predominant manner with respect to the institutional one does not affect the use of the tax credit also in relation to the latter activity.
Objective scope of application and requirements for obtaining the benefit
The fees referred to in paragraph 1 must relate to a lease contract as identified by articles 1571 and following of the civil code and whose discipline is regulated by the law of 27 July 1978, n. 392, or relating to the cases in which the enjoyment of the properties takes place following an administrative provision of concession which, usually, is accessed by a private-law convention which governs the relations between the parties. As far as non-commercial entities are concerned, the provision is also applicable in the event that the leased properties, always different from those for residential use, are used for the purposes of the institutional activity. This last requisite can be verified by examining the deed of incorporation or the statute of the individual association or body. In the event that the non-commercial entity also carries out commercial activities in the same building, the tax credit will be attributed in relation to the rent pertaining to the two spheres (institutional and commercial) and in compliance with the different requirements identified by the law . With regard to the rent paid only for the part relating to the commercial activity, the non-commercial entity must verify that it did not achieve revenues or fees exceeding 5 million euros in 2019 and that it had a drop in turnover or payments for the reference month of at least 50 percent compared to the same month of 2019. In the event that there is only one lease contract stipulated by the institution, it is necessary to identify, with objective criteria, the portion of the rent relating to the premises used for carrying out the institutional activity compared to that of the premises in which the commercial activity is carried out. For this purpose, for example, it is possible to refer to the allocation criteria used in internal accounting for the purpose of allocating costs and revenues to the two activities. In the absence, it is possible to use any other criterion that is objective and verifiable during the control activity by the financial administration. Finally, if the non-commercial entity does not carry out any commercial activity in the building used solely for institutional purposes, the aforementioned verification of the drop in income flows from the activities carried out in the reference month by at least 50% is not required. percent compared to the same month of 2019, for the purpose of using the tax credit (provided, in relation to the aforementioned income flows, that the limit of 5 million euro has not been exceeded).
Credit measurement
The tax credit amounts to 60 percent of the rental fee for non-residential properties. Furthermore, pursuant to paragraph 5, the tax credit provided for by article 28 is commensurate with the amount paid in the 2020 tax period with reference to each of the months of March, April and May. For tourist-accommodation facilities with only seasonal activity, however, it will be commensurate with reference to the amount paid for each of the months of April, May and June. It should be noted that the fee must have been paid in order to use the credit. In the event that the fee has not been paid, the possibility of using the tax credit remains suspended until payment is made; however, the possibility of transferring the tax credit to the lessor as payment of the rent remains unaffected. In this regard, it should be noted that in this case the payment of the rent is to be considered to have occurred at the same time as the effective moment of the transfer.
Assignment of credit and administrative control powers
Even in the event of credit transfer, the powers of the financial administration relating to "control of the entitlement to the tax credit and the assessment and imposition of sanctions against the beneficiaries" remain unchanged.
