it counts the usability of the environments and not the habitability

Is considered luxury, therefore excluded from thefirst home facility regarding registration tax, the house that exceeds the total useful surface of mq. 240.

For the recognition of the facilitation detects only usability, and not even the actual habitability of the rooms, making this requisite the appropriate parameter to express the "luxurious" character of a home. Therefore the mezzanines are also included in the calculation the home.

This is the content of the sentence of the Court of Cassation n. 29643/2019.

Court of Cassation – sentence n. 29643 of November 14, 2019

First home subsidies, the mezzanine also contributes to the calculation of the property surface

The sentence – The controversy originates from the appeal presented by a taxpayer against a notice of assessment issued by the Revenue Agency for the recovery of the registration tax following forfeiture of the benefits "first home" due for the purchase of the property.

The tax payer's appeal was accepted by the CTP, but rejected by the appellate courts. According to the CTRnotice of assessment was to be considered legitimate in that, as correctly operated by the Office, in surface calculation relevant for the purposes of the d.m. August 2, 1969 had to be the loft also counted and, due to the effect, the useful surface area greatly exceeded the threshold of 240 square meters, with the elimination of the tax relief.

The tax payer challenged the decision of the second instance complaining, as far as this is concerned, of the violation and false application of the art. 6 of the dm n. 1072/1969 for not having the CTR considered that, for the purpose of calculating the useful surface, the mezzanine had to be compared to the attics and, therefore, not having a suitability for the housing function, to be excluded.

The Court of Cassation rejected the appeal of the property owner with the conviction to pay the costs.

As known, in terms of subsidies c.d. "First home", in order to establish whether a home is luxury and as such excluded from said benefits, it is necessary to refer to the notion of total useful surface of the art. 6 of the d.m. Public Works 2 August 1969, n. 1072.

On the basis of this provision, the relevant area must be determined by excluding from the global extension reported in the purchase deed that of balconies, terraces, cellars, attics, stairs and the parking space. In particular, for the recognition of the facilitation it notes "The only usability and not the actual habitability of the environments."

The Court has already expressed itself concretely on the "usability" parameter of the environments (something different than the actual habitability) specifying for example that the rooms, even if qualified as cellar and attic but with access from the inside of the house (and, therefore, similar to a mezzanine), they are computable in the overall useful surface (as Cassation n. 18480/2016) as the attic (Cassation n. 18483/2016).

Essentially,

"What is important – in line with the appreciation of the real estate market – is the marked housing potential of the same and, more precisely, the factual suitability of the environments for carrying out activities typical of everyday life."

The Ministerial Decree of 2 August 1969 n. 1072, to the art. 6, as far as this is concerned, specifies that they are considered luxury homes “The individual real estate units having a total useful surface greater than sqm. 240 (excluding balconies, terraces, cellars, attics, stairs and parking spaces). "

Since the list is mandatory, therefore, the exclusion from the calculation of the entire non-walkable surface of the property would be arbitrary and outside the perimeter of the standard.

On the basis of these considerations, the Court of Cassation expressed the following principle of law:

"For the purpose of identifying a luxury home, in order to exclude the so-called benefit. first home, the useful surface must be determined by looking at the "usability of the rooms" regardless of their actual habitability, constituting this requirement, the appropriate parameter to express the "luxurious" character of a home. It follows that the concept of useful surface cannot be strictly identified with just the "living area", since the Ministerial Decree of August 2nd 1969, n. 1072, article 6, to be interpreted in the sense that the entire surface of the real estate unit is "useful", different from the balconies, terraces, cellars, attics, stairs and the parking space and that in the calculation of the 240 sq.m. lofts. "