As already highlighted in previous contributions, the intervention of the legislator through Legislative Decree No. 192/2024 has significantly affected the regime governing transfers of professional firms. In particular, the amended Article 2(3)(b) of Presidential Decree No. 633/1972 introduced among transactions outside the scope of VAT “the transfers and contributions to companies or other entities, including consortia and associations or other organizations, having as their object businesses or branches of business, or a unitary complex of tangible and intangible assets, including clientele and any other intangible element, as well as liabilities, organized for the exercise of artistic or professional activities.”
This results in an expansion of the area “outside the scope of VAT” for transactions concerning, inter alia, businesses, business branches, or unitary complexes of tangible and intangible assets functionally organized. Therefore, in cases involving the transfer or contribution of a unitary complex of assets and relationships serving a professional firm, it can now be considered settled that the transaction is not subject to VAT. The exclusion of such transactions from VAT, however, entails—pursuant to the principle of alternativity—their attraction within the scope of registration tax. It should nevertheless be noted that where the transaction concerns the transfer of individual assets (e.g., clientele alone or specific fixed assets), and thus not the entire unitary complex, the VAT regime will continue to apply.
Registration tax is governed by Presidential Decree No. 131 of 26 April 1986 (the so-called Consolidated Registration Tax Act, “TUR”) and may assume, depending on the circumstances, the nature of a fee or of a tax. It qualifies as a fee when it is due in a fixed amount and its triggering event consists in the provision of a service by the tax authorities (i.e., the registration of the deed). Conversely, registration tax operates as a true tax when it is determined proportionally to the value of the registered deed; in such cases, the rationale of the tax lies in the execution or formation of a legal relationship with economic content, which the legislator considers an index of taxable capacity.
From the standpoint of registration, a distinction must be drawn between deeds subject to mandatory registration within a fixed term, deeds subject to registration only in case of use, and deeds not subject to registration. With respect to the first category, the legislator imposes on the contracting parties or on the officiating public officials—such as notaries—the obligation to request registration within a specified time limit. Deeds subject to registration only in case of use, on the other hand, are not required to be registered within a predetermined term; however, they cannot be used for administrative purposes, for example as evidence in court, unless the relevant tax has first been paid. For the determination of registration tax, the legislator attached a tariff schedule to the TUR, divided into two parts: the first relating to deeds subject to fixed registration, and the second to deeds to be registered only in case of use.
Having set out these brief premises, without any claim to exhaustiveness, the issue of the application of registration tax in light of the amended Article 2(3)(b) of Presidential Decree No. 633/1972 can now be addressed. It is precisely in this area that the main operational difficulties arise: while it is clear that VAT does not apply to such transactions, it is not equally clear at what point registration tax must apply, particularly in cases involving the transfer of a unitary complex. Indeed, although no particular issues appear to arise in the case of contributions of unitary complexes—since Article 4 of Part I of the Tariff attached to the TUR expressly provides for registration tax to be applied within a fixed term and in a fixed amount of €200—the transfer of a unitary complex does not find within the TUR an equally clear and specific regulation. The absence of an express provision in the TUR concerning the transfer of a unitary complex therefore generates interpretative uncertainty and requires interpretative effort.
In the absence of an explicit reference to the transfer of a unitary complex in the Tariff attached to the TUR, two possible solutions seem to emerge: to classify the deed under Article 2(1) of Part I of the Tariff, relating to transfers for consideration of assets other than real estate, or under Article 10 of Part I of the Tariff, concerning other deeds involving patrimonial performances. In any event, whichever classification is deemed correct, the transfer of a unitary complex—unless it concerns assets for which a different registration tax is expressly provided—triggers proportional registration tax at a rate of 3%.
The issue becomes even more complex where the deed transferring the unitary complex is concluded through an exchange of correspondence. Article 1 of Part II of the Tariff attached to the TUR provides that deeds referred to in Articles 2(1) and 10 of Part I, if executed by correspondence, are subject to registration only in case of use, except where such deeds concern transfers of businesses, or deeds for which written form is required by law under penalty of nullity (cf. Article 1350 of the Italian Civil Code). At this point, it becomes crucial to determine whether the transfer of a unitary complex may be assimilated to the transfer of a business in order to establish whether the more favorable “case of use” regime may apply.
From a civil law perspective, as recently clarified by the Interregional Committee of the Notarial Councils of the “Tre Venezie,” the transfer of a professional firm may approximate the notion of a business where the organizational structure is capable of generating goodwill at least partially autonomous from the person of the owner. Conversely, where the value of the activity remains entirely tied to the professional’s person and to the fiduciary relationship with clients, classification in business terms tends to be excluded.
From a tax law perspective, however, the legislator appears to be aware of and to make use of the distinction between a business and a unitary complex. Reference may be made, for instance, to the recently amended Article 2(3)(b) of Presidential Decree No. 633/1972 and to the aforementioned Article 4 of Part I of the Tariff attached to the TUR, which, in the context of contributions, expressly distinguishes between the two categories.
The assimilation of a unitary complex to a business therefore assumes decisive importance, particularly with respect to deeds executed by correspondence. If one were to consider that no difference exists between the two categories, the transfer of a unitary complex would have to be treated in the same manner as the transfer of a business, with the consequent application of registration tax within a fixed term and proportional tax at a rate of 3%. If, on the other hand, the distinction drawn by the tax legislator is given weight, a deed concerning the transfer of a unitary complex, when executed by correspondence, could fall within the general rule of registration only in case of use, since the exception expressly refers only to “transfers of businesses.”
The interpretation that appears most consistent with the literal wording of the provisions is the one that excludes any automatic assimilation between a unitary complex and a business, precisely because the legislator demonstrates awareness of the distinction and employs the two categories separately. From this perspective, the transfer of a unitary complex concluded by exchange of correspondence could, at least in theory, benefit from the more favorable regime of registration only in case of use. In the absence of legislative clarification, professionals can only proceed with caution, assessing on a case-by-case basis the specific characteristics of the transfer and the relevant contractual structure in order to determine the correct application of registration tax.
