Establishment of Surface Rights on Agricultural Land – 9% Registration Tax

In recent years, particularly with the growth of agrivoltaics, the establishment of surface rights on agricultural land has become a widespread and strategic practice. These agreements allow for the construction of photovoltaic systems while keeping the ownership of the land separate from that of the buildings erected on it.

Despite its frequent use, this instrument has long remained in a grey area from a tax perspective, especially regarding the applicable registration tax rate. Until recently (see the Italian Revenue Agency’s ruling, interpello no. 365 of 3 July 2023), the Agenzia delle Entrate held that the granting of surface rights to a third party on agricultural land was equivalent to a transfer, and thus subject to the 15% rate, applicable to the transfer of agricultural land to non-qualified parties.

With Resolution No. 23/E of 3 April 2025, this interpretation has been definitively overturned, opening a new phase of legal certainty. The Agency has aligned itself with the consolidated case law of the Supreme Court (most recently Cass. 22 October 2024, no. 27293), recognizing that the establishment of surface rights over agricultural land falls under the 9% rate, applicable to transactions creating or transferring rights in rem of enjoyment.

Surface Rights and Registration Tax: Legal Interpretation

The heart of the interpretative issue lies in Article 1 of the Tariff, Part I, annexed to Presidential Decree 131/1986, which governs the registration tax for real estate transactions.

This article clearly distinguishes between:

• acts transferring or establishing rights in rem of enjoyment, which are taxed at the ordinary rate of 9% (first paragraph);
• transfers of agricultural land to persons who are not direct farmers or professional agricultural entrepreneurs, which are subject to a higher 15% rate (third paragraph).

The term “establishment” appears solely in the first paragraph, confirming that these acts are governed by separate provisions. The subsequent paragraphs refer only to transfers, understood as changes in legal ownership.

It is therefore possible to identify multiple distinct rights on the same parcel of land. Specifically, ownership of the land and surface rights may coexist and be treated or transferred independently.

Italian case law (Cass. nos. 3461/2021, 27293/2024, 16495/2003) has consistently held that the establishment of surface rights in favor of a third party gives rise to a new right in rem, which does not constitute a transfer, but rather a limitation of the owner’s full property rights. Therefore, it does not fall under the 15% rate.

Surface Rights and Registration Tax: The Revenue Agency’s Shift

In the past, the Italian Revenue Agency had offered an expansive interpretation of the law: in Circular no. 36/E of 2013 and interpello no. 365 of 2023, it argued that the granting of surface rights on agricultural land should fall under the scope of the third paragraph of the Tariff (governing transfers), and thus be taxed at 15%.

This interpretation relied on an assumed equivalence between “transfer” and “establishment” of rights in rem, borrowing logic from income tax law (Art. 9(5) of the Italian Income Tax Code), but lacking any legal basis in the registration tax framework.

Resolution 23/E now puts an end to the debate, endorsing the distinction recognized by the courts, and acknowledging the proper interpretation of the rules.

Surface Rights and Registration Tax: Practical Implications and Tax Rates

The Revenue Agency’s clarification offers immediate and tangible tax savings for those entering into contracts for the establishment of surface rights on agricultural land: the applicable rate is 9%, not 15%.

However, the implications go beyond the moment of establishment: it is also crucial to assess what happens if and when the right is transferred.

Case 1 – Establishment of Surface Rights

The owner of a parcel of agricultural land (A) enters into a contract with a renewable energy operator (B) granting surface rights for a period of 30 years.

• This is considered the establishment of a right in rem of enjoyment: the registration tax is 9%, in accordance with the first paragraph of Art. 1 of the Tariff, Part I, of DPR 131/1986.

Case 2 – Transfer of the Surface Property Right

After acquiring the surface rights, B decides to transfer this right to a third party (C).

• This is a transfer of a right in rem. In this case, the 15% tax rate applies, as it falls under the third paragraph of the Tariff.

The Italian Supreme Court (Cass. no. 23547 of 9 October 2017) has clarified that surface ownership is distinct from full ownership: it is usually temporary and arises from a time-limited right of superficies. Its transfer constitutes a taxable transaction of a right in rem.

Case 3 – Sale of a Building Constructed on Surface Rights

Following the construction of a building on land over which C holds the surface property right, they decide to sell the building to another party (D).

• This is a sale of a physical asset. In this case, it would be reasonable to assume that the registration tax rate applicable is the one typically used for the type of building being sold.

In such cases, it is essential for the buyer (D) to be aware that once the surface rights expire (in this case, 30 years from the establishment), the landowner will regain ownership of the land along with any structures built on it.

Conclusion

The clarification provided by Resolution 23/E is both timely and significant: it clearly distinguishes between legal frameworks and allows stakeholders in the energy and real estate sectors to operate with greater confidence.

For renewable energy developers, landowners, and those advising on such transactions, this development not only simplifies contractual management, but also optimizes tax efficiency and improves the sustainability of investment models.