The topic of municipal tax on port property has drawn and continues to draw the attention of many public and private entities, as well as terminal operators.
Following the introduction of the municipal tax on property (IMU) through the implementation of the “Save Italy” Decree,1 terminal operators were naturally required to pay the tax, in the same manner in which they paid the municipal tax on immobile property (ICI),2 which the IMU repealed.
The question thus arose as to which form of property fell under the scope of the new tax, as the law allows for some special categories of property to be exempt from paying the IMU.
In particular, property classified in category E/1 is exempt from the IMU, namely «property providing transport services, whether terrestrial, maritime or areal.»3
The brevity of the definition subsequently required the adoption of a number of interpretative circulars, which established that only immoveable property instrumental to transport activities or maritime traffic and/or operations strictly required by port activities, including warehouses and storage areas,4 fell under category E/1.
Nevertheless, the situation across the ports of the Italian peninsula is anything but clear and uniform. Indeed, in many cases, the Land Registry has redefined the classification and applied the new, more onerous tax on terminal operators.
The existence of an incomplete law alongside an unclear administrative procedure is running the risk of creating serious distortive effect in terms of competition. The measures by which the Land Registry is classifying and re-classifying the property of terminal operators may be reported to and be the subject of a claim before the competent Provincial Tax Commissions, within 60 days from the date of receipt of the notice of assessment.
In this manner, the claimant shall be able to argue the illegitimacy of the Land Registry’s orders. Indeed, the Land Registry often adjusts annuities in an “automatic” manner, using unfounded justifications.
In particular, with regard the classification of property, the obligation to justify notices of assessment extends beyond a simple indication of objective data and subsequent classification of the property. Proper justifications must be provided.
The Supreme Court pronounced itself in this regard on 13 November 2012, clarifying that «according to article 7 of Law n. 212 of 2002 (the statute outlining taxpayers’ rights), the revision of the classification of property must be justified in explicit terms, which explain in an intelligible manner the specific justifications of the reclassification. Only in this manner may a taxpayer adequately decide whether or not to contest the tax measure, and in such a case, specify, as requested by article 18 of Legislative Decree n. 546 of 1992 the reasons of his complaint.»
Adequate justification of notices of assessment must be provided because reclassification constitutes a decisive tax measures: it is in effect a new classification.
Land Registry cannot limit itself to issuing an order of reclassification but must also indicate a judicial or factual point of reference which justifies and supports the said order, thus delimiting the object of the potential judicial dispute, to which administration cannot add justifications different to those already pronounced.
In the port sector, notices of assessment should follow a careful preliminary investigation, which notifies the terminal operators that sections of the property are not instrumental to transport activities or maritime transport and/or operations necessary to port activities. Notices of assessment should contain a legal and a factual justification.
Up until today, the numerous Tax Commissions have not been unanimous in providing an opinion with regard whether public properties legitimately fall under category E/1. Nonetheless, it is clear that in view of the Supreme Court’s recent ruling, Tax Commissions shall continue to be called upon more and more frequently to carefully examine the “justification” behind notices of assessment.