Pursuant to art. 149, paragraph 1, of Presidential Decree no. 917/1986, the status of non-commercial entity can be lost if the entity mainly carries out commercial activities for an entire tax period. Paragraph 2 clarifies the parameters to be considered for the loss of qualification.
However, the cardinal rule for ecclesiastical bodies is that referred to in paragraph 4: "the provisions referred to in paragraphs one and two do not apply to ecclesiastical bodies recognized as legal persons for civil purposes and to amateur sports associations".
Two opposing theses have developed on the interpretation of this fourth paragraph.
For the first, ecclesiastical entities can never lose the status of "non-commercial entities", not even when they carry out a predominantly commercial activity, based on the parameters referred to in the aforementioned law. There would be an implicit confirmation from the report accompanying the Legislative Decree no. 460 of 1997, such that ecclesiastical entities could be defined as commercial entities "by law". Civil recognition as an ecclesiastical body always presupposes that the same has as its exclusive or principal object an activity of religion or worship, which can never be commercial. In doctrine it has been held that ecclesiastical entities can never lose their connotation of non-commercial entities, since almost all the commercial activities carried out by these entities are nothing more than the activities in which, since their foundation, the apostolate of the individual congregations and which, therefore, even if carried out in an organized form, do not modify the "original spirit of religious mission". In short, it would be a question of a praesumptio iuris ac de iure of non-commercialisation of the activity of ecclesiastical entities.
For the second orientation, which is the one deemed acceptable by the Cassation, the paragraph in question dictates only the rule that for ecclesiastical bodies (and amateur sports associations) it is not sufficient to carry out a prevalent activity for a single financial year to lose the status of "body non-commercial”, but it is necessary that over the course of the various years of activity the ecclesiastical body has actually carried out mainly commercial activity. The art. 149, paragraph 4, therefore pertains only to the "single exercise" of activity and prevents the ecclesiastical body from losing the status of "non-commercial body" if the "exceeding" of the parameters occurs in a "single exercise", but if such " overrun" occurs in several financial years, then the nature of "non-commercial entity" may cease.
