IMU for fiscal period 2012 on industrial real estates: declared the incustitutionality

The Constitutional Court declared illegitimate the rule governing the non-deductibility of the cost of IMU (local tax on industrial real estate), for the 2012 tax period, from income taxes. The provision declared illegitimate is in fact in contrast with some principles guaranteed by Articles nr.3, 41, and 53 of the Constitution (principle of ability to pay, prohibition of double taxation, principle of reasonableness and principle of equality and free economic initiative).
Generally, the declaration of the unconstitutionality of a provision acts retroactively and produces its effects, within certain limits, on the relations existing between taxpayer and Treasury allowing the advancement of a refund request. However, art. 38 of Presidential Decree 602/1973 excludes this possibility as it identifies “48 months from the date of payment” as the deadline for submitting a specific refund request.
Therefore, the only taxpayers who could potentially benefit from the ruling of unconstitutionality in this matter are those who have challenged the assessment notice issued by the Revenue Agency in relation to the IMU deduction in 2012.
As regards the years after 2012, it should also be noted that the Constitutional Court has already ruled out the possibility for the taxpayer to assert the unconstitutionality of the rule in order to file a claim for refund as already starting from the 2013 tax period, the legislator has introduced a series of provisions that have gradually led to the deductibility of the IMU for income tax purposes.

Antonio Orazio Della Corte