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We are witnessing the issuance, by some local authorities, of IMU assessment notices relating to appurtenances of the main residence that are taxed because they are considered to be “objectively autonomous” with respect to the main property.
An appurtenance exists, pursuant to art. 817, Civil Code, when an item is placed at the service or as an ornament of another, without constituting an integral part of it and without being an indispensable element for its existence, but in such a way as to increase its utility or value (A. Torrente, Manuale di diritto privato, Milan, 2011, p. 187).
For the establishment of the appurtenance relationship, two requirements are necessary, namely an objective prerequisite (given by the relationship of service or ornament between the accessory item and the main item) and a subjective one (consisting of the intention to allocate an item to the service or ornament of another). The appurtenance relationship must be characterized by an accessory bond and must be lasting, not occasional. No further requirements are provided for.
The reflective cue arose from considering what the maximum distance an appurtenance can have from the main residence to be considered as such, with the related favorable tax regime. In reality, by analyzing some municipal regulations on IMU, I found that some local authorities tend, compared to the Civil Code, to restrict the concept of appurtenance, coming to consider it as such only if, for example, it is located on the same parcel as the main residence, is located in the same municipal territory as the main residence, lacks an autonomous purpose, lacks an autonomous market value, lacks functional autonomy, etc.
It should be remembered that the Supreme Court (Cass., 25127/2009) holds that, in the tax field, the burden of proof of the appurtenance relationship lies with the taxpayer and must be assessed with greater rigor than that required in private law relationships.
So, what to do if an IMU assessment notice is issued on the basis of a municipal regulation that provides a definition of appurtenance with additional specifics compared to those provided by art. 817, Civil Code?
The municipal regulation is fully among the sources of law: it is a secondary regulatory act, which tends to innovate the legal system, not immediately harmful, since the prejudice becomes effective and actual only with the implementing act; before that moment, the harmfulness is hypothetical and possible (E. Di Giacomo, Sulla disapplicazione dell’atto amministrativo in ambito tributario, Il Fisco n. 18/2007).
On the basis of the municipal regulation, therefore, the tax judge can, in general terms, base their decision.
In the event of a conflict between rules—in this case, rules that are in a hierarchical relationship—the “superior” rule must be applied (R. Guastini, L’interpretazione dei documenti normativi, Milan, 2004, p. 251), by virtue of the principle lex superior derogat legi inferiori: the law is hierarchically superior to the regulation and, for this reason, must be applied in place of the secondary source.
Attention: the conflict in question, relating to the same definition of appurtenance given by two different rules, cannot be resolved by applying the principle of specialty, according to which lex specialis derogat legi generali, because this method of resolution applies only to cases of partial unilateral conflict, that is, cases in which the two rules do not have the same field of application (for example, because one constitutes a general rule and the other establishes an exception).
For safety and thoroughness, however, it is better to remember that, in tax proceedings, art. 7, paragraph 5, Legislative Decree no. 546/1992, provides for the so-called power of non-application, which is an investigative power that, if exercised, results in the non-application of the regulation and not its withdrawal or annulment: such non-application consists of a mere deprivation of the effectiveness of the act limited to the specific case.
In light of this, in the event that the IMU assessment taxes the appurtenance of the main residence because, for example, it has a separate entrance from the main property, if this happens on the basis of the definition of appurtenance given by the municipal regulation, it is appropriate to expressly request the tax judge to disapply the regulation, in addition to arguing the defense in the interpretative terms described above.
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