With the publication in the Official Gazette of Decree-Law 31 May 2021, n. 77 (c.d. Simplifications Decree) the amendments to art. 119 of Decree-law 19 May 2020, n. 34 (c.d. Relaunch Decree) which provided for the tax deductions of 110%
(super bonus) for the interventions of
energy requalification e reduction of seismic risk.
Superbonus 110% with CILA and without proof of legitimate status
There are several changes made to the regime provided for the super bonus 110%, in this article we will try to focus on those referred to inart. 32 (Simplification measures on incentives for energy efficiency and urban regeneration), paragraph 1, letter c) of
D.L. n. 77/2021. We are talking about the changes to the paragraph 13-ter of art. 119 of the Relaunch Decree which in its previous version had generated many problems of interpretation … never as much as those envisaged by its new formulation!
Let’s go into detail. The new paragraph 13-ter provides:
“The interventions referred to in this article, with the exception of those involving the demolition and reconstruction of buildings, constitute extraordinary maintenance and can be carried out by means of a sworn communication of commencement of works (CILA). The CILA certifies the details of the qualification that provided for the construction of the property subject to intervention or of the provision that allowed it to be legitimized or it is certified that the construction was completed on a date prior to 1 September 1967. The presentation of the CILA does not require the certification of the legitimate status referred to in article 9-bis, paragraph 1-bis, of the decree of the President of the Republic June 6, 2001, n. 380. For the interventions referred to in this paragraph, the forfeiture of the tax benefit provided for by article 49 of the decree of the President of the Republic no. 380 of 2001 operates exclusively in the following cases:
- failure to present the CILA;
- interventions carried out in deviation from CILA;
- absence of the attestation of the data referred to in the second period;
- non-correspondence to the truth of the certifications pursuant to paragraph 14. Any evaluation of the legitimacy of the property subject to intervention remains unaffected.“.
Basically, now all interventions that access the 110% superbonus, both for energy requalification and for the reduction of seismic risk (they will have to explain to us how it will work with civil engineering), which do not involve demolition and reconstruction, can be started upon presentation of a sworn communication of commencement of works
(WHAT) in which the section reserved for the certification of the legitimate state must not be completed.
What is CILA
Before delving into the effects of this change, as always, it is necessary to step back and resume
definition of CILA contained inart. 6-bis del DPR n. 380/2001 (Consolidated Building Act). Here are the first two paragraphs:
1. The interventions not referable to the list referred to in articles 6, 10 and 22, can be carried out upon communication, also electronically, of the start of the works by the interested party to the competent administration, without prejudice to the prescriptions of urban planning instruments, building regulations and the urban planning-building regulations in force, and in any case in compliance with the other sector regulations affecting the regulation of the building activity and, in particular, with the anti-seismic, safety, fire-fighting, hygienic-sanitary regulations, those relating to energy efficiency, protection from hydrogeological risk, as well as the provisions contained in the code of cultural heritage and landscape, referred to in legislative decree 22 January 2004, n. 42.
2. The interested party transmits to the municipal administration the project and the communication of the start of the works sworn by a qualified technician, who certifies, under his own responsibility, that the works comply with the approved urban planning instruments and the building regulations in force. , as well as that they are compatible with the legislation on seismic matters and with that on the energy performance of buildings and that the structural parts of the building are not involved; the communication also contains the identification data of the company to which it is intended to entrust the execution of the works.
Now let’s go further. As clarified by the jurisprudence (for example the Judgment TAR Calabria 29 November 2018, n. 2052), the CILA relating to extraordinary maintenance works it is not subject to an eligibility assessment by the administration itself to which only the
power to check the conformity of the building object of the CILA with the regulations in force.
The TAR stated that CILA is a deed having a private nature, as such, not susceptible of autonomous appeal before the administrative judge. “The activity subject to CILA not only is it free, as in cases of SCIA, but, unlike the latter, it is not subject to systematic control, to be carried out on the basis of formal procedures and peremptory deadlines, but must only be known by the administration, so that it can verify that, indeed, the planned works have a modest impact on the territory, achieving what is faced with a comparison between a merely sanctioning power (in the case of CILA) with a repressive, inhibitory and conformative power, as well as self-protection (with SCIA)“.
What does it mean? that the CILA is not subject to denial by the administration but in the event that an intervention does not comply with the latest qualification issued, it is always subject to the sanctioning power of the public administration which may also concern the suspension of works and sending the file to the municipal police.
Even more: the CILA denial measure adopted by the administration is void since it expresses a power not typified in art. 6-bis of Presidential Decree no. 380/2001, without prejudice to the supervisory activity against abuses and the exercise of the related repressive power of the territorial body.
CILA was legitimate
As mentioned, now the technician will no longer have to certify the legitimate status but, considering that the presentation of a CILA that differs from the state of the places would cause the loss of the superbonus, it is clear that it must faithfully represent the state of the places. At this point, without the technician having any responsibility for it, since he will not have to verify and certify the legitimate status, it is possible that:
- the intervention is according and not subject to the sanctioning power of the SUE;
- the intervention there are discrepancies
(easily detectable by making a comparison between the CILA and the last title) and the taxpayer is sanctioned and reported to the municipal police.
In the latter case, the opening of a file would also be triggered with the consequent suspension of the works. All with a CILA that cannot be “denied” but that could cause administrative and criminal sanctions and the suspension of works (watch out for the contract with the company).
At this point, if you have passed the desire to use the CILA without verification of the legitimate status, you are probably right!
What if the SCIA was still used?
If the professional decides to use the SCIA anyway, there are some interesting changes to be considered made by articles 62 and 63 of the Law Decree n. 77/2021 to the law of 7 August 1990, n. 241. In particular:
- in Article 20, after paragraph 2, the following is added:
“2-bis. In cases where the silence of the administration is equivalent to an acceptance provision pursuant to paragraph 1, without prejudice to the effects of the silent consent that have occurred in any case, the administration is required, at the request of the private individual, to issue, electronically, a certification regarding the expiry of the terms of the procedure and therefore of the acceptance of the application pursuant to this article. After ten days have elapsed from the request, the certificate is replaced by a declaration from the private person pursuant to art. 47 of the decree of the President of the Republic 28 December 2000, n. 445.”;
- in Article 21-nonies, paragraph 1, the word “eighteen“is replaced by the following:”twelve“.
The SCIA was provided for in our system by art. 19 of Law 7 August 1990, n. 241 bearing “New rules on administrative procedure and right of access to administrative documents“. Paragraph 3 provides”The competent administration, in the event of ascertained lack of the requirements and conditions referred to in paragraph 1, in
term of sixty days upon receipt of the report referred to in the same paragraph, it adopts justified measures prohibiting the continuation of the activity and the removal of any harmful effects thereof. If it is possible to conform the activity undertaken and its effects to the current legislation, the competent administration, with a reasoned deed, invites the private individual to prescribe the necessary measures with the establishment of a term of not less than thirty days for the adoption of these latest“
The SCIA is then subject to control for 60 days after which it consolidates. In construction, the SCIA is consolidated after 30 days but, beware, although the administration cannot adopt measures to suspend the works, warnings or injunctions after this term has elapsed, the exercise of self-protection powers always remain.
With the changes made by the Simplification Decree, after 30 days from the presentation of the SCIA it will be possible to request from the administration a certification regarding the expiry of the terms of the procedure and therefore of the acceptance of the application.
With the amendment to paragraph 21-nonies, paragraph 1:
“The illegitimate administrative measure pursuant to article 21-octies, excluding the cases referred to in the same article 21-octies, paragraph 2, can be canceled ex officio, if there are reasons of public interest, within a reasonable period, in any case not exceeding to twelve months from the moment of the adoption of the authorization measures or the attribution of economic advantages, including the cases in which the provision was formed pursuant to article 20, and taking into account the interests of the recipients and counter-interested parties, by the body that has it issued, or by another body required by law. The responsibilities related to the adoption and failure to annul the illegitimate provision remain valid“.