"Relaunch" Decree and Trust: a possible coexistence!" By Elena Napolitano, Lawyer and PhD student in Civil Law and constitutional legality - UNICAM

12 August 2021

 The “Rilancio” decree-law of 19 May 2020 introduced an incentive measure - the so-called Superbonus 110% - aimed at making homes more efficient and safer. The superbonus mechanism provides for the possibility of carrying out the work without any charge to the property owner subject to interventions. Two types of work can be carried out: those of energy efficiency (and in this case, we speak of Super Ecobonus) and anti-seismic adaptation (so-called Super Sisma bonus). The incentive consists of a 110% deduction to be applied on expenses made from 1 July 2020 to 30 June 2022. The works carried out by 31 December 2021 will be divided among the entitled parties in five annual instalments; those carried out in 2022 will be in four annual instalments of the same amount. Once the expense has been incurred, the taxpayer can decide to make the discount on the invoice: in this case, it is the company /s that carried out the work that will apply a discount of 100% of the invoice value and then receive a credit tax equal to 110% of the amount of the discount applied. If the taxpayer decides to bear the cost of the works, he can take advantage of the deduction in compensation to pay fewer taxes or transfer the tax credit to third parties (for example, credit institutions). All this determines a virtuous market mechanism: the owner of the property can renovate the house without any monetary outlay, reducing the cost of energy users and enhancing their real estate assets; the company increases its turnover; the state intervenes not only to make housing more efficient but also supports the increase in employment and income. Recently, the first ruling (no. 498/2021) was presented to the Revenue Agency regarding access to the super-bonus deduction for redevelopment work on properties segregated in a trust. However, let us proceed in order. A citizen residing abroad presented a request for a ruling that he represented that he had bought with his wife, at the end of the 1980s, a residential property in Italy, to be used for his children. This property, originally in the name of the minor child and purchased with financial funding provided by the parents and maternal grandmother, in 2018 was assigned to a “selfdeclared” trust (therefore, the child by now of age had become its settlor and trustee) and the parents themselves were named beneficiaries. The following year, intending to access 110%, the trustee presented the CILA (Communications of Commencement of Works Assessed) to divide the property into four residential units. On the other hand, the bare ownership would remain to the eldest son in the capacity of trustee. The settlor, by granting the usufruct of two apartments to the father and the other two apartments to the mother for a decade, would thus have made the latter holders of land income in Italy and, as such, entitled to request tax deductions, with the possibility of opting for the transfer of credit or the discount on the invoice. By doing so, he would have respected the rules of art. 119, paragraph 9 letter b) and paragraph 10, of Legislative Decree no. 34/2000, which identity among the recipients of the Superbonus “natural persons, outside the exercise of business activities, arts and professions”, up to a maximum of two real estate units per applicant. That said, the taxpayer participated in the financial authority, which, as a usufructuary and a future financier of the redevelopment interventions, believed he was entitled to benefit from the super bonus, albeit of an asset set up in trust. The petitioner asked if there were, in the present case, any impediments to the transfer of the tax credit or the other alternative method provided for in the “Relaunch” decree, the discount above on the invoice. The Revenue Agency, in responding succinctly and positively to this question, recalled that the only condition to be observed is found in circular no. 24/E/2020, where it is made clear that the purchase of the usufruct must precede the start of the works or the disbursement of the cost of the interventions. It should be pointed out that the trust is not an autonomous substantial legal entity and, therefore, cannot be the holder of real rights. Moreover, the trustee is exclusively in charge of a managerial role of asset administration and therefore cannot be classified as a private individual. This clarification tends to clarify why the trustee had to first provide for the splitting of trust assets and then avail himself of the help of his parents.