Anyone who buys their first home and does not reside in the municipality where the home is located has 18 months to transfer their residence there; the term starts from the date of the purchase deed and not from the day of completion of the works, if the object of the purchase is a house under construction. This is what the Court of Cassation decides in order no. 9433 of 17 April, reforming a sentence of the Tuscany CTR (n. 712 of 20 September 2016) in which it was decided, on the contrary, that the 18-month deadline would start from the day of completion of the construction works.
The rule that regulates the topic is contained in paragraph 1, letter a), of note II-bis to article 1 of the Consolidated Law on the Registry (Presidential Decree 131/1986). This rule states that, to qualify for the first home benefit, the property being purchased must be "located in the territory of the Municipality in which the buyer has or establishes his residence within 18 months of purchase". The issue therefore arises of understanding whether the 18-month term inexorably runs from the day of the purchase contract or whether, since the property being purchased is unavailable to be inhabited for any reason (for example, because a tenant occupies it or because there is work in progress or to be carried out, etc.), the term can instead start from the day on which the impediment ceased.
A related issue is whether the taxpayer can demonstrate (to avoid forfeiture of the benefit following the passing of the eighteenth month without the residence having been transferred) the existence of a cause of force majeure such as to prevent the movement of the residence. Well, the Court of Cassation, with order 9433/2018, reiterates what has already been stated with sentence 2527/2014, namely that the 18 months in question are calculated from the date of the deed unless there is a cause of force majeure, which, however, does not occur in the case of failure to complete the construction works, as it is a situation which cannot be qualified in terms of "inevitability and unpredictability".
However, the relevant jurisprudence is much more broad. If, in fact, the CTP of Cagliari (n. 44/2015) decided in the same direction as the Court of Cassation, the Ctr Veneto (n. 34/2007) held that the eighteen-month deadline "starts only from the moment in which the property under construction and subject to sale has become effectively suitable for use and to satisfy the housing need". In the same sense, the Treviso CTP (n. 26/2010) and, again, the Veneto CTR which, in sentence no. 25/2015, pointed out that «in the eighteen months foreseen for the transfer of residence, the period of time required for the issue of the habitability certificate must not be taken into account».
For Ctr Lombardia (4 January 2016), the 18-month deadline is not peremptory, "where there are impeding events that may have hindered the acquisition of residence in a given Municipality"; furthermore, according to Ctp Reggio Emilia (16 May 2017), the 18-month deadline starts from the day on which (in this case: the establishment of an easement for public use, necessary for obtaining the certificate of habitability) all the conditions necessary "to obtain the certificate of building conformity and usability" are met.
In answer no. 5-08887 of 14 June 2016, in a parliamentary question presented to the Chamber of Deputies, it was stated that the Revenue Agency believes that the 18-month deadline starts from the date of the purchase contract even if it is a property under construction; and that the taxpayer can still validly argue, in his favor, that the failure to transfer residence is due to force majeure.
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