Tax effects of rent “a scaletta” (variable)

The tax treatment of “variable” rent payments is often the subject of debate in the Regional Tax Commissions.

A case that occurs with a certain frequency is for example an agreement to reduce the rent in favor of the tenant who, in agreement with the property owner, performs renovations on the property.

According to art. 26 of the T.U.I.R. “rental income contribute, regardless of perception, form the overall income of the subjects who own the properties or have emphyteusis, usufruct or other real rights”.

The Italian Tax Authorities several times over the years (see CT 12/10/2017 n. 5921/7/17) had considered the cited agreement as a barter transaction, considering the expenses incurred by the tenant as an advantage in favor of the property owner and he had therefore configured them as a rent payment paid in kind.

The most recent decrees n. 3284/7/2019 of 29/05/2019 and n. 3999/22/19 of 15/10/2019 have established a different legal guidance, reasoning that the works performed by the tenant can be considered an alternative form of payment of the rent only if these represent actual incremental improvements in the value of the asset. However, if these improvements are exclusively for the benefit of the tenant, it is correct for the property owner to be taxed only on the rent received.

One time the Revenue Agency had established to a taxpayer a higher income from properties than the one that he declared. The taxpayer filed an appeal alleging that he had declared the value of the fee he actually received. In the lease agreement, in fact, it was established that, although the annual rent was Euro 90.000, for the first years of the lease the agreed rent was reduced to Euro 70,000. The contract also stipulated that the property owner had authorized the tenant to perform renovations, modifications and improvements of the property.

According to the Regional Tax Commission, these works had not increased the value of the asset but had adapted the structure of the property to the personal interests of the tenant. This was also confirmed by an expert appraisal report.

Therefore the renovations performed that are qualified as improvements, cannot be taxed as an addition to the fee received.