The Provincial Tax Commission of Florence, with the ruling of 18/6/11 Feb. 18, dismissed the appeal of a company which in 2004 sold the company declaring a consideration for the sale amounted to € 144,608, with a capital gain of € 28,868.
office, given that, pursuant to Article 86, paragraph 2 of the Uniform Tax Code, the gain must be calculated as the difference between the consideration, net of any directly attributable transaction costs and the cost of assets not depreciated therefore summoned the representative office of the company for delivery the necessary documentation to verify the correct calculation of the gain.
During the procedure, the taxpayer submitted a memorandum setting out the following:
the company, in 2001, had already disposed of the company, with agreement to reserve the property, to another company
the consideration for that sale was was estimated at 154,937 €
since July 2003, the transferee company, however, had ceased to pay installments due is in default
despite the failure, the gain was taxed on a straight line from 2001 to 2005, with the amount of € 28,868, for a total of € 144,340 as a result of
situation has arisen, with the surrendering company demanded urgent action (ex Article 700 CPC) return of the transferred
The refund was then ordered by a court in Florence in December 2003 by decision of
consequently, the company will cover the multitude of debts background against the assignee, including the non-payment of rent and sign a new lease of premises, releasing further guaranty to the owner and paying the fees arrears amounting to € 31mila, plus a new deposit.
Based on the foregoing, the office thus held that the share of € 28,868 in the declaration for the year 2004 tax, would in fact be related to the first transfer of business of the year 2001.
With reference to the assignment in 2004, the company had indicated a surplus budget of only € 9,222, a payment amount of 144,608 (€ 123,949 + 20,659 for start-up capital goods). The gain was thus not declared to € 135,386.
With respect to the register of depreciable assets, the last record in the book delivered to the office were raised, moreover, the date of first sale of the company since it must therefore be considered that the amount is amortized had already been deducted from the first gain produced and not, and so was outstanding amounts from amortized in relation to goods subject of the second assignment.
The appellant then objected that the two assignments, first in 2001 and later in 2004, and then follow the same premise, where both were subject to taxation, there would be a duplication of tax.
office showed, however, in this regard that the two operations were autonomous, so it was not possible to deduct from the second gain as stated with reference to the first transfer.
It was, in fact, stipulated in the supply of two different tax periods and with different subjects.
Moreover, in each case, could also be made the following considerations.
The applicant, as stated, had shown that the first sale of the company was not successful as a result of the failure of the transferee.
However, the same transferor company, until July 17, 2003, had received the regular rate paid by the transferee as consideration for the sale of the same company and did not appear that those amounts were later returned to the transferee.
Secondly, the office also showed that, following the repayment of the company, additional charges were made in the financial statements as negative elements and, consequently, had already been counted in each year as a reduction of business income .
Law, then, the issue contains profiles of particular interest.
As stated by the same applicant, in this case there was a sale with retention of ownership, legal case against which, for the purposes of tax effects and, in particular, the realization of capital gain subject to taxation, we must consider that Article 109, paragraph 2, letter a) of the Uniform Tax Code provides that "does not take into account the retention of title clauses."
This discipline reflects, in fact, the civil setting, that this reserve serves exclusively a function of guarantee in favor of the seller to pay the price.
Under the same Article 109, for that matter, if different and subsequent to the date of signing of the act, becomes relevant to the date on which the effect occurs or translational incorporation of the property or rights in rem, except in case of one of the stipulations expressly declared irrelevant by the tax law (as, for example, in fact, the retention of title clauses and leases with a retention of title clause is binding on both parties).
To confirm the immediate relevance of the amounts obtained as a result of the transfer of business (even if the reservation of ownership), what precisely the installments already paid by the applicant, however, one could also mention also the case of the preliminary contract of sale , that does not involve the transfer of the company, engaging only the parties to finalize it with a final contract.
For the purposes of the Income Tax Act, the Act is therefore irrelevant, since for the taxation of capital gains when it refers to the sale of the company.
However, even in this case, if the Act provides for the payment of a deposit on the price, this is relevant for determining the taxable year of reference for the gains from the sale.
Ultimately, there is no doubt that, with regard to supplies involving complex business, the tax basis for income tax is regarded as the date the agreement was drawn, or, if later, the date on which the effect occurs or translational incorporation of property or other real rights, provided they do not take into account the retention of title clauses.
For as confirmed also by the Supreme Court, with the ruling 18229/2003, in a case of leasing translational rightly treated by the same Court to repurchase stock, "just the opportunity for the dealer to achieve a gain in the case of for sale for its early termination of the contract, means that the fees actually paid not only covers the use of the property until the time of sale (effect already materialized), but also partly the price for his subsequent transfer, that unrealized justify the realization by the dealer for any difference in surplus, compared to the conventional value.
So, back to this case, the events "private" by default and withdrawal that occurred between the parties of the first transfer had no reflection on the second, for the purpose of pointing out only in accordance with Article 86, paragraph 2 of the Uniform Tax Code, the difference between the fee and the cost of non-depreciable assets (in this case zero).
These findings were then confirmed by the Court of CTPs of Florence, which expressly stated that "the Commission having regard to art. 163 of the Uniform Tax Code, which stipulates the prohibition of double taxation with reference to the same tax basis, believes that in this case we have two distinct sets of conditions arising from two separate contracts with different contractors and therefore do not test the hypothesis of double taxation. "
Source: Revenue Agency
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