Article taken from the site http://www.lavoce.info/ Authors: Andrea Carinci Thomas Tassani The soul, as confused debate in the last few days has turned on the issue of tax relief for non-commercial entities - among them, those clerics - advocates the interest to address the issue as much as possible from the strict legal point of view. The provision in dispute is the subject of dispute Ici exemption, under Article 7 of Legislative Decree No 504/92, in favor of the non-profit organizations (1), in relation to property used exclusively for the conduct of charitable activities, social security, health, education, accommodation, cultural, recreational and sports activities, religious or cult. At issue, however, is not mentioned Article 7, as the authentic interpretation that was provided with the link to the 2006 Budget and the Visco-Bersani decree. Prior to these two interventions, the rule of exemption was interpreted by case law (2) in a very strict: in addition to the prescribed requirements, subjective and objective, it had been placed third, which restricted the exemption to the operations of non-commercial . So, in order to receive the exemption, it must not be exercised in real estate business activities in any way. Well, it was to "correct" this reading of case law that the legislature has intervened, first with the link to the 2006 Budget, which "interpreted" Article 7 making it applicable to the activities listed "regardless of the nature of any commercial same "and then, in lieu of this interpretation, with the Decree No. 223/06 (the so-called Visco-Bersani), which has instead made the exemption applicable to "activities that do not have purely commercial." Without going into the merits of the two solutions, accruing to a given: certainly the first, but clearly even with the second "interpretation", the facility was extended to commercial activities. But only to those performed in the areas mentioned in the article. 7, non-commercial entities. The EU is concerned specifically about the profile that you play the theme of the compatibility of Community previsione.Ai under the EU Treaty (Article 87) are prohibited for tax breaks that go to benefit only some of the companies operating in the market, they occur, then, as though the benefits selettive.È approach "pragmatic" the European Commission and Court of Justice to come here into consideration. Why, like this, the compatibility of the aid must be assessed, not because of the form it takes, but the effects they produce on the position of companies. And it is here that the concept of State aid, including that to be granted in the form of lower taxes (so-called tax incentives), while the concept of enterprise, is due any person or entity engaged in economic activity, which that provides goods or services on a given market. It is then entirely irrelevant legal status, the absence of non-profit subjective assessments as to the purpose meritevolezza perseguite.Con such a framework, it becomes inevitable question about the compatibility of Facility Ici. It is clear that, if endorsed in the original interpretation by case law, a compatibility issue could not be put, since the exemption was limited to buildings not designed to the business, you must reach a different conclusion today after the authentic interpretation provided by Decree No. 223/06. As in the case of the latter, in fact, this advantage also definitely interested in property used for farming activities. Moreover, the requirement has been structured in terms of non-exclusive use prevalence of good and not: so, is sufficient, marginal, good business destination for finding it fulfilled. Vale then consider that non-commercial entities can peacefully pursue business activities, provided this is not prevalent: the activities and "social", that must be exercised in real estate, they can certainly be done in the form of business. Indeed, the experience of the last twenty years of the "third sector" demonstrates how the company is the preferred solution for the welfare activities, health, education, eccetera.L 'facility also comes as selective, if one considers that the " social market economy "other operating individuals (including sole proprietors as well as companies) who can not access facilitation in question. The advantages of ecclesiastical bodies then there is another profile to be assessed, which is more directly ecclesiastical bodies. The ecclesiastical entity is considered fiscally, and always non-commercial, as stolen at that trial the prevalence of non-commercial and commercially, but for all other covered entities. (3) Not only, then, the ecclesiastical institutions may engage in business pursues incidental to those of religion and worship (think of the management of nursing homes, hospitals, business publishing, etc.), but it is also possible that these activities result in concrete "prevailing", without this leading to a reclassification of the institution itself and the loss of subsidy. The position of ecclesiastical bodies, of whatever denomination, is therefore within the privilege of further facilitation provided by law for all private non-commercial entities. The issue of non-profit organization Ici The exemption, as currently configured, does not therefore appear legitimate in the light of the prohibition of state aid. Could be invoked, as partial justification for the low impact of subsidy on the Community market (4), but does not appear immediately. The community experience is in fact rigorous enough in considering the mere strengthening of the position of insertion on the domestic market benefit over European competitors. (5) But, in hindsight, the problem Ici exemption is intended to pale compared to an issue that may soon affect the bodies: the non-profit organization facilities. A scheme, this, that reducing taxes on business income fully realized by those working in areas relevant sociale.Pesanti are then the clouds come from Brussels and that move in the Italian welfare society. But clouds are not interested in religious or secular nature of the subjects on which they were struck, but only to the protection of the market and equal competition. Values \u200b\u200bmay dry, barren and prosaic, but that Italy has chosen to share with other community partners, the point of accepting a limitation of its sovereignty, according to the formula of Article 11 of the Constitution. And the home of law, dura lex sed lex. (1) According to statements by the spokespersons of the European Commission in the press (and the acts of inquiry to the Italian government, as well as response by the latter, are not publicly available at present), the Commission's findings will also cover the art facility. 6 of Presidential Decree No. 601/73 (reduction to one half of the IRES) in non-commercial entities, with personalities legal, operating in certain sectors. In this aspect we wanted to detain us here, for the sake of brevity, but the issues that arise are undoubted affinities with the theme. (2) Supreme Court No. 20776/05 (3) Art. 149 of the Uniform Tax Code precludes the Inland Revenue that it is possible in the ordinary way: to investigate the true nature, commercial or otherwise, of the institution. Thus, acquired the status of a church organization (which for some organizations is expected, while for others it is a function of a feedback nature of religion and belief of the objectives pursued, however, incompatible with the exercise of activities different, even commercial), which by law is equal to the non-commercialism, it can not be questioned. (4) arguments, ie, that a facility granted to an entity that has as main activity of the company (having this be marginal compared to the main non-commercial) in relation to a building is not designed exclusively to business, have a material impact in terms of "distortion" of the market. (5) CG 102/87, paragraph 19. In any case, "the Commission is not required to demonstrate a real effect of the aid on trade between Member States and competition, but if the aid is liable to affect such trade "(CG C-298/00, paragraph 49).
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