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Granting surface right on agricultural land: registration tax at 9 per cent

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​​​​ ​​​​​​​​​​​​​​​​​​published on 19 May​ 2025 | reading time approx. 4 minutes​


With Resolution no. 23/E of 3 April 2025, the Italian Revenue Agency, for the purposes of the application of registration tax, clarified that the rate of 9 per cent rather than the rate of 15 per cent applies to deeds of granting of surface rights on agricultural land. The Revenue Agency, with this resolution, has therefore changed its stance and aligned itself with the position of the Supreme Court (Order no. 27293 of 22 October 2024 and no. 3461 of 11 February 2021). 

Civil law framework

The surface right is regulated by art. 952 et seq. of the Italian Civil Code whereby:
  • ​The owner may grant the right to third parties to make and maintain above ground construction, who shall acquire ownership thereof (para. 1);
  • Similarly, the owner may transfer the ownership of the already existing construction, separately from the ownership of the land (para. 2).

Taxable base for registration tax

Under art. 43(1)(a) of the Presidential Decree 131/1986, the taxable base is constituted for contracts transferring or granting rights in rem by the value of the asset or right at the date of the deed.

Rate of registration tax

Under art. 1(1) of the Tariff table attached to the Presidential Decree 131/1986:
  • the rate of 9 per cent is to be levied on deeds of transfer of ownership of immovable property in general and deeds of transfer or granting of rights in rem on immovable property of enjoyment (first sentence); and
  • the rate of 15 per cent is to be levied if the transfer concerns agricultural land and related appurtenances in favour of persons other than direct cultivators and professional agricultural entrepreneurs (third sentence).

Previous stance of the Revenue Agency

In the past, Circular no. 36/E of 19 December 2013 clarified that:
  • deeds of transfer of the ownership of immovable property in general and deeds of transfer or granting of rights in rem of enjoyment were subject to 8 per cent registration tax. However, if the subject of the grant of the surface right is agricultural land, the deed was subject 15 per cent tax; and
  • deeds concerning the grating of the surface right were subject to registration tax at 9 per cent.

Supreme Court position

On the contrary, the Supreme Court, in its Order no. 27293 of 22 October 2024, has confirmed that the registration tax at the rate of 8 per cent (provided for, ratione temporis, by art. 1(1), first sentence, of the Tariff) rather than 15 per cent (set forth in the third sentence) applies to a deed of granting of a surface right on agricultural land for the construction of a photovoltaic plant. The ground for this stance is that the provision of the third sentence of art. 1(1) of the Tariff is applicable to the transfer and not to the granting of a right in rem of enjoyment.

The stance set forth in the above Order is consistent with that previously reported in Order no. 3461 of 11 February 2021, where the Supreme Court, with reference to the taxation of an act of granting  of a surface right on agricultural land for the construction of a photovoltaic plant, takes the same position as that taken in ruling no. 16495 of 2003 concerning the constitution of a right of easement (a case, for tax purposes, similar to the one in question). According to this position, the term “transfer” contained in art. 1 of Presidential Decree No.​ 131 of 1986, in the annexed T​​​ariff, was used to indicate all those acts that provide for the transfer from one person to another of the ownership of immovable property or of the ownership of rights in rem of enjoyment and cannot be used to indicate acts granting rights in rem of enjoyment such as an easement, which does not entail the transfer of rights.

Conclusion

In the light of the above Supreme Court position, the Revenue Agency has therefore superseded the indications contained in the previous documents and clarified that registration tax at the rate of 9 per cent, as provided for in ​​the first sentence of art. 1(1) of the Tariff, is applicable to deeds of constitution of surface rights on agricultural land, rather than the more onerous rate of 15 per cent referred to in the third sentence of the same paragraph.​​

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Paolo Zani

Certified Tax Consultant, statutory auditor (Italy)

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