The subjective qualification of a real estate management company encounters specific consequences in the income field, in particular with regard to the determination of business income. The problem is that of the 'instrumentality' of the property in the hands of the property management company, i.e. another of the concepts referred to in resolution 393/E/2002 from which we started. The assumption of the qualification of instrumental property, in fact, involves the determination of the relative income according to the typical discipline of business assets (analytical difference between costs and revenues), while a deficiency in this sense involves the application of the discipline of land income, as known determined on a cadastral basis (ordinary average income, without analytical reduction of the relative costs).
Capital properties by nature. The definition of the income determination regime (on a cadastral or analytical basis) applicable to instrumental properties by nature having the qualification set out in article 40, paragraph 2 of the Consolidated Law on Finance appears to be not very difficult. Properties 'not susceptible to different uses without radical transformations', even if not used, or leased or loaned, i.e. 'properties instrumental by nature', are taxed by property management companies on the basis of actual results, therefore analytically with separate examination of costs and revenues.
Operational properties by destination. On this front there are numerous jurisprudence rulings, while the financial administration has examined the issue sporadically, mostly in the context of specific regulatory circumstances (for example, that of the facilitated assignment of assets to shareholders).
In the jurisprudential context, it appears sustainable to admit among the instrumental properties by destination those (with the important aside: of any type) leased by a real estate management company, provided that the rental is used exclusively for the entrepreneurial activity of the company in question (Cassation 6378 of 5 June 1991 and 4088 of 3 April 1992). Ruling 13408 of 9 October 2000, again by the Court of Cassation, established, even at the level of absolute presumption of instrumentality, that the properties belonging to the companies must be considered properties relating to the company.
In ministerial practice, circular 112/E of 21 May 1999, relating to the regulation of the facilitated assignment of assets to members, deserves mention. In defining the objective scope of the rule, paragraph 3.1 of circular 112/E/1999, with specific reference to property management companies, excluded the instrumental nature of properties rented to third parties, in this referring to a ruling of the Supreme Court (1367 of 13 October 1983).
source: Il Sole 24 Ore
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