The Creation of a Right of Superficies over Agricultural Land and the Registration Tax Regime: Judicial Confirmation and Continuing Resistance in Administrative Practice

Abstract

The establishment of a superficies right over agricultural land has often been characterized by significant interpretative uncertainties, particularly with regard to the legal-tax classification of the transaction and the correct identification of the applicable registration tax rate. These doubts arise from the comparison between the second sentence of Article 1 of the Tariff, Part I, annexed to Presidential Decree No. 131 of 26 April 1986, which subjects transfers concerning agricultural land and related appurtenances to a 15% rate, and the first sentence of the same provision, which – through broad and unnamed wording – encompasses both transfers of ownership in general and transfers or constitutions of in rem rights of enjoyment over immovable property, subjecting them to a 9% rate. In light of the critical issues raised by the statutory framework, the position adopted by the Supreme Court case law stands in contrast to the different approach followed by the tax authorities. This contribution examines the main inconsistencies of the current regime, identifying a possible interpretative solution in the incentive-based criterion developed in relation to the establishment of predial easements, deemed coherent and systematically sound not only from a literal and historical perspective, but also from a teleological standpoint.