the forfeiture of the tax benefit

the forfeiture of the tax benefit
the forfeiture of the tax benefit

We will talk much more about the change made by
D.L. n. 77/2021 to art. 119, paragraph 13-ter of
D.L. n. 34/2020 (Relaunch Decree) regarding the definition of the interventions of superbonus 110%, of the necessary building title, of the legitimate status and of the forfeiture of
tax benefit.

Superbonus 110%: abuse does not block the deduction

With the new version of paragraph 13-ter, the legislator evidently wanted to unlink fiscal measures from construction ones. In addition to expected, in fact, that the interventions superbonus 110% without demolition and rebuilding can be considered extraordinary maintenance and, in addition to clarifying definitively that these interventions is only necessary CILA, it was also established that in the model CILA l ‘interested he will not have to communicate anything about the town planning regularity of the property.

We would like to point out immediately that not all Regions of Italy require the interested party to communicate that the current state of the property is fully compliant with the documentation of the state of fact legitimized by the last building permit. But in all regions it is expected that the designer, as a person carrying out a service of public need pursuant to articles 359 and 481 of the Criminal Code, having completed the necessary
assessments of an urban, building, static, hygienic nature and following the inspection, asserts that theintervention, Fully described in the design documents, complies with approved planning instruments and the current building regulations, and which is compatible with the rules on seismic and with that on the energy performance and that there is no involvement of the structural parts of the building .

The new paragraph 13-ter also provides for an exception to the principle established by art. 49 of Presidential Decree no. 380/2001 (Consolidated Building Act) which, we remind you, provides for the forfeiture of the tax benefits enjoyed in the event of abusive intervention carried out in the absence of a title or in contrast with it, or on the basis of a title subsequently canceled. It is also provided that the forfeiture referred to in art. 49 operates only in the following cases:

  • failure to present the CILA;
  • interventions carried out in deviation from CILA;
  • absence of the attestation of the details of the qualification that provided for the construction of the property subject to intervention or of the provision that allowed its legitimacy or that certified its construction (in case this was completed on a date prior to the 1st September 1967);
  • non-correspondence to the truth of the certifications provided for by art. 119, paragraph 14 of the Relaunch Decree.

Basically, in a way bordering on unconstitutionality, the new rule provides that the superbonus can also be used for properties that have building abuses but not on completely illegal properties. Verification of the existence of the title that provided for the construction of the property or certifying that the property was built before 1 September 1967.

Super bonus 110%: the deduction does not block the penalty

However, the last sentence of paragraph 13-ter provides, for the avoidance of doubt, that “Any evaluation of the legitimacy of the property subject to intervention remains unaffected“. This is to avoid thinking that the green light of the tax bonus may also correspond to one amnesty for any abuses present.

Possibility that, in reality, is not at all contemplated in the
building regulations. As said many times, the CILA is one communication in which the interested party informs the competent administration that he has started works that are not free building (Article 6 of Presidential Decree No. 380/2001), but which do not even require permission to build (Article 10 of Presidential Decree No. 380/2001) nor
certified notification of the start of business (SCIA, art.22 of Presidential Decree no. 380/2001).

Superbonus 110%: with the CILA property at risk of self-report

The presentation of a CILA that faithfully represents the intervention and the state of the places, indicating the building permit or the pre-1967 certification, will not have any problem of
forfeiture of the tax benefit provided for by art. 119 of the Relaunch Decree.

Furthermore, the jurisprudence has made it clear that
the administration cannot do anything against CILA (which is not an instance), but can only work to crack down on any identified abuse. In the case of CILA presented to access the 110% superbonus in which the legitimate status has not been verified (because it is no longer foreseen), the municipal technician can always infer and sanction any abuses that can be derived from the comparison between the attached graphics and the last building title .

Paradoxically, the taxpayer will continue to enjoy the superbonus for an intervention on which theadministration can order the demolition!

Final tips

The best advice you can give are:

  • for the taxpayer, always pay close attention to the legitimate state of the property in which to intervene because the presentation of a CILA that represents a state of the places different from the last title, is a real self-report that will allow the administration to activate all the repressive powers of the abuse (civil and criminal);
  • for the technical, although it does not have to certify anything about the legitimate state of the property, it is always better to inform (regardless of the superbonus 110%) that any discrepancy will be “self-reported” to the administration;
  • for the technical, have a complete discharge signed on civil and criminal liability concerning any existing building abuses.

#a positive thought and a good 110% superbonus to everyone.

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