Docks and warehouses functional to port operations and services: isn't the IMU really due?
By ASLA - Associazione degli Studi Legali AssociatiMassimo Campailla*
Bologna - Starting from January 2020 - pursuant to article 1, paragraph 578, of the law of 27 December 2017, no. 205 - the docks and uncovered areas of the ports used for port operations and services, as well as those used for passenger services (including cruise passengers), which are the responsibility of the port system authorities and the related road and railway infrastructures, the depots located therein strictly functional to the aforementioned operations and services, must be registered in category E/1, even if entrusted in concession to private individuals. The news deserves particular attention since the immediate consequence of this classification in category E/1 is the non-debt of the IMU on the aforementioned properties. It is, therefore, a potentially suitable provision to put an end to the numerous disputes that, for over a decade now, have been affecting Italian ports with reference to the criteria for stacking state-owned warehouses and the consequent debts of the IMU on the part of the concessionaires.
Although the rule appears clear in establishing the necessary requirements for classification in category E/1, the first disputes against the Revenue Agency have already arisen: for some weeks, in fact, as soon as the suspension - due to the pandemic - of the notifications of tax deeds, numerous port concessionaires were recipients of notices of assessment and correction of the classification, with which the Office contested the census in category E/1 of the properties, requested during 2019 in application of the aforementioned art. 1, paragraph 578, of law no. 205/2017. In some cases, the Office has objected to the lack of the requirement of "strict functionality" of the deposits, a requirement that is actually considered by law to exist in the presence of authorization for port operations and services issued by the competent port system authority pursuant to Article 16, paragraph 3, of law no. 84 of 1994.
Failure to recognize category E/1 would derive - in the reconstruction of the Office - from the non-coincidence between the person who has the availability of the warehouse and the one who is entrusted, internally, with carrying out port operations pursuant to art. 16 L. 84/94. In other cases, again, the proposed revision of the classification in category E/1 of the entire property was not accepted, as some offices would also be present in the warehouses reclassified in E/1: in particular, in some cases the Agency rejected the request for cadastral update concerning the entire storage warehouse for the sole reason that in the cadastral parcel there were also two (minimum) rooms indicated as offices, to which the Revenue Agency has attributed functional autonomy and income. In further hypotheses, the Agency has rectified the classification recognizing the functional and income autonomy of the port warehouses under concession pursuant to art. 18 L. 84/94 as allegedly disconnected from the terminals and therefore considered not strictly functional to the activity of handling goods. These are, of course, only some of the most varied interpretations to which the law, in these first months of validity, has been submitted by the Revenue Agency.
These interpretations partially frustrate the expectations of those who (rightly) believed that the important legislative change introduced with Law 205/2017 would put an end to the long-standing disputes over the stacking of terminals and port warehouses in E/1. At this point, once again, all that remains is to wait for the consolidation of a new jurisprudential orientation that clarifies what the conditions must be - in the opinion of the writer indeed already unequivocal - that port properties must possess in order to be registered in E/1. This is a potentially harbinger of prejudice for port operators who, again, may be forced to undertake long and burdensome disputes pending which would remain the risk of the IMU's debt or not on the properties under concession.
*Professor and lawyer, Zunarelli Law Firm
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