Superbonus 110%: the credit transfer market kicks off, between risks and opportunities.

Within the main measures recently introduced by the Legislator to support the economy, in order to cope with the dramatic economic effects of the Covid-19 pandemic, the so-called 110% Superbonus, introduced by the Decree Law no. 34/2020 (“Relaunch Decree”) has raised particular interest among taxpayers and financial operators.

The Superbonus is the possibility, offered in particular to individuals and to condominiums, to carry out some important restructurings, in order to improve the energy efficiency of the buildings and to reduce the anti-seismic risk, with the benefit of a deduction from the income taxes (IRPEF, in relation to individuals or IRES, in relation to legal entities) of a tax credit equal to 110% of the amount spent (which must comply with the limits specified for each intervention).

The tax benefit is particularly attractive for taxpayers, both for the high tax benefit recognized (which may even exceed the amount of expenditure incurred) and for the possibility of using this benefit, as an alternative to the tax deduction, as an invoice discount, performed by the company carrying out the renovation, or through the tax credit transfer to third parties.

This last option is, without any doubt, an interesting alternative for taxpayers, as it allows to raise on the financial market the capital necessary to carry out the restructuring, through a financing, which, if well negotiated, could turn out to be at zero cost, as it could be entirely repaid through the transfer of the tax credit in favor of the lender.

Moreover, through the tax credit transfer - as definitively clarified by the Italian Tax Agency - subjects who would not be entitled to the tax advantage can benefit from the Superbonus, such as, for example, individuals who do not declare taxable income for IRPEF purposes or those subject to a flat-rate taxation scheme.

Finally, the unlimited number of potential purchasers (which can be both legal entities, including credit institutions and financial intermediaries and individuals, including the beneficiary's relatives and relatives-in-law), as well as the option of a further transfer of the purchased credit to other subjects, have made the credit a value that could circulate in the capital market.

For all these reasons, there has been recently an explosion of a real market of tax credits (resulting not only from access to the Superbonus, but also from the other transferable tax benefits, which will be the topic of another article, since each credit is subject to autonomous regulations).

On the other hand, these are instruments that have all the characteristics to become, in the near future, real commodities, suitable to move in the market, like the most common financial instruments.

Suffice it to say that, at the end of October, in just 15 days from the date of opening of the special platform of the Italian Tax Agency, more than two thousand requests for the credit transfer were submitted, for a countervalue of more than 13 million euro.

In order for the transfer to be effective and convenient for both the parties involved, however it is necessary for the taxpayers to strictly follow the procedure introduced by the Law, as well as to adopt, also with the consulting of a professional, all the precautions that the particular case requires.

In fact, it is immediately clear that the tax benefits (which can, therefore, give rise to a transferable credit) are various and each tax benefit needs to be dealt with taking into account its own characters, in order to avoid the rise of subsequent issues or disputes.

In the following paragraphs, we will deal with the general procedure regarding the use of the credit deriving from the Superbonus, as well as the procedure regarding its transfer to third parties, without prejudice to the need to verify the characteristics of each particular case.

As known, pursuant to Article 119 of Decree-Law no. 34/2020, in order to benefit from the tax advantage, it is first necessary to bear the expenses during the period between 1 July 2020 and 31 December 2021 (although there could be a possible extension to 2024).

To benefit from the tax deduction to the extent of 110% of the costs incurred, the outlay must be incurred to carry out only specific restructurings, as the tax benefit is not extendable to all building renovations (even if abstractly directed to energy efficiency).

Specifically, the Superbonus concerns four main building renovations (so-called leading restructurings):

• thermal insulation of the buildings (so-called thermal coat ) (1);
• replacement of winter air conditioning systems in buildings’ common parts (2);
• replacement of the winter air-conditioning systems in single-family buildings or in the properties of multi-family buildings functionally autonomous and independent (3);
• anti-seismic building renovations pursuant to Art. 16 of Law Decree no 63/2013 (so-called sismabonus)(4);

In addition to these restructurings, the Superbonus applies to expenditures incurred for some secondary restructurings (so-called trailed restructurings), in case they are jointly performed with at least one of the renovations listed above.

This second group of restructurings includes:

• energy efficiency interventions pursuant to Article 14 of Law Decree no. 63/2013 (5);
• the installation of solar photovoltaic systems (6);
• the installation of infrastructures for recharging electric vehicles (7).

In order to benefit from the Superbonus, the leading and trailed restructurings must ensure the improvement of at least two energy classes, or, in case this is not possible, because the building is in the second highest class, the achievement of an highest energy class.

In order to benefit from the tax advantage, the improvement must be demonstrated by the energy performance certificate (APE) issued by a qualified technician as a sworn statement.

Building renovations may involve both the common parts of condominiums, as well as private houses, including second houses (excluding luxury properties, falling into categories A/1, A/8 and A/9), with a limit of two properties, however, for restructurings in private buildings (8).

Also the IRES taxpayers (as well as the IRPEF taxpayers, who own the property in the exercise of a business activity), are entitled to benefit from the Superbonus, in the only case of expenditures for leading restructurings carried out on the common parts of condominiums mainly for residential use.

Therefore with regard to the companies (as well as for practitioners and entrepreneurs, who hold the property in the exercise of a business), the access to the benefit is precluded for the single properties, even if they are autonomous and functionally independent.

With regard to the limits of use of the tax benefit, once the right to the deduction has been obtained, the same must necessarily be used in five annual quotas of the same amount, within the limits of capacity of the annual tax resulting from the tax return. The quota not used in the year of entitlement cannot be recovered or requested for refund. For example, if the amount spent for the restructuring were 10.000 euro, the benefit (equal to 11.000 euro in total) would be usable in 5 annual quotas equal to 2.200 euro each.

With regard to the ways in which the benefit can be used, as already mentioned, the Legislator, also in order to overcome the limits of the above-mentioned deduction, has introduced two other options in addition to the direct deduction of the expenses borne by the taxpayer: the advance contribution to be used through a discount on the invoice and the credit transfer.

With particular regard to the credit transfer, the Legislator has provided for a structured procedure of legal and bureaucratic compliance, in order to protect as much as possible the Tax Authorities, as well as the future purchaser, from the risk of circulation and/or purchase of non-existent credits.

First, the choice to benefit from the credit transfer (or from the discount on the invoice) must be electronically notified to the Italian Tax Agency within the deadline of March 16 of the year following that in which the expenses were incurred.

In order to exercise this option, the taxpayer must, then, previously obtain the following documentation:

• the compliance certificate, issued by intermediaries authorized to electronically transmit documents (i.e. chartered accountants, bookkeepers, etc.), which certifies, on the basis of the documentation submitted, the existence of the legal conditions that gives right to the deduction;
• the technical affidavit, issued by qualified technicians, certifying (i) the compliance with the requirements of energy efficiency and reduction of seismic risk, which are necessary to obtain the tax benefit, (ii) as well as the adequacy of the expenses incurred in relation to the restructurings (each of which has different maximum spending limits for tax purposes).

These documents are the keystone of the system introduced by the Legislator, since they allow a preliminary verification, carried out by people with technical competencies, about the actual existence of the conditions necessary for the recognition of the tax benefit as well as for its transfer to third parties, thus reducing the burden of control, which, otherwise, would have fallen entirely on the purchaser.

On this basis, the Legislator has introduced the imposition of a pecuniary administrative fine ranging from 2.000 euro to 15.000 euro on the subjects in charge, in case of issuing of a false certification or affidavit, in addition to the application of criminal penalties (in case of a crime).

Therefore according to the legislation, even in the event of a transfer, the beneficiary is liable for the existence and entitlement of the tax credit (as well as with the practitioners who assisted him in the access phase if they have made false statements), while the purchaser is exempted from liability, except for the liability for any irregular use of the credit or for an amount greater than the amount purchased.

Nevertheless, the purchaser can benefit from this exclusion of liability after a preliminary careful verification of the beneficiary’s compliance with the procedure regarding the access to the tax relief, with particular regard to the existence of both the compliance certificate on the provided documentation and the technical asseveration.

From another point of view, the credit transfer has to be carefully coordinated with the specific subsidised restructuring, both from the point of view of the timing of the restructuring and the payment methods, so that are respected the financial requirements of both the beneficiary and the contractor, who is called upon to carry out the restructuring.

Only through this careful coordination, which, of course, will be more complex in case of condominium (also for the need to balance the interests of individual owners), it will be possible to meet the different interests at stake and ensure the full and effective, success of the operation.

Pubblicato da: Avv. Iacopo Bissi

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(1) The deduction is recognized for a maximum amount of € 40.000, which has to be multiplied by each property, in case of a condominium consisting of 2 to 8 properties. If the building has more than 8 properties the maximum expenditure is reduced to € 30.000 for each property. For single-family buildings, or for individual properties located in a condominium (provided that they are functionally independent and with independent access from the outside), the maximum deductible expenditure amounts to € 50.000.

(2) The maximum expenditure is € 20.000 for each property, for buildings up to 8 properties. If the properties are more than 8 the maximum expenditure for each one is reduced to € 15.000.

(3) The deduction is calculated on a total amount of expenses not exceeding € 30.000 for each property.

(4) The spending limit is € 96.000 for each property, but without limit on the maximum number of properties on which to carry out the building renovations.

(5) The spending limits for energy efficiency interventions are those set out for each intervention in Article 14 of Decree Law no. 63/2013.

(6) The deduction for the installation of the photovoltaic system is calculated on a total amount of expenditure not exceeding € 48.000, and in any case within the expenditure limit of € 2.400 for each kW of rated power of the photovoltaic solar system, for each property (reduced to € 1.600 for each kW in the case of a contextual building renovation, new construction or urban restructuring).

(7) The maximum amount of eligible expenses for the installation of infrastructures for recharging electric vehicles is € 3.000.

(8) This limit does not apply to building renovations carried out on the common parts of condominiums, which are not included in the counting. Therefore, more than two properties located in the same condominium or in more than one condominium could benefit from the Superbonus. Those who have already benefited from it to carry out "private" restructurings on 2 different autonomous property could benefit from the deduction resulting from the building renovation in a condominium.