Separazione

Imu exemption for separation and divorce, when it is due and what's new

Imu for separated and divorced people, how does it work? Dealing with the issue of IMU payment is always a very delicate thing given that various exemptions are foreseen.
However, when particular situations emerge that go beyond what is foreseen by the legislation.
One of the cases concerns clarifications provided in the IMU area for separated and divorced persons provided by various sentences of the Court of Cassation.
In the field of home tax, this is a particular case in which the owner, even without residence, can be exempt from paying the IMU.
The principle is reiterated in an important ruling of the Court of Cassation in 2023 which provides essential elements in this regard.
The case in question concerns a taxpayer who received an IMU assessment notice on a property he owned assigned upon separation to his wife to live there with their children.
The taxpayer appealed, which was rejected at first instance and upheld at second instance.
The Municipality presents a further appeal to the Court of Cassation against the second degree sentence.
Separate IMU exemption IMU exemption for separated spouses The double exemption for separated and divorced IMU spouses, the legislation already existed for IMU, it is not always the owner who pays IMU exemption for separated spouses The IMU legislation provides for exemption from the payment of IMU for properties used as a main residence are considered to be the property in which the taxpayer's family resides and has their domicile.
On the first home there are few exceptions, in fact, only if the property is registered as "luxury" is the IMU due.
The Court of Cassation, with ruling 2747 of 2023, rejected the Municipality's appeal, recognizing the taxpayer's right to IMU exemption.
The reasons that the Supreme Judges have given are to be found precisely in the fact that the property in question constitutes a residential home assigned upon separation to the other spouse to live there with the children.
In fact, the Court reiterates that the taxpayer had demonstrated that the house in question constituted the "family home" through the attachment of the presidential decree with which its assignment, upon separation, to his wife was ordered to live there together with their children.
, thus evidently presuming that until then that destination had been given to the property.
Until the separation, therefore, the property was intended as a residential home for the family unit and, therefore, also for the taxpayer himself.
In its ruling, the Court of Cassation also refers to the recent ruling of the Constitutional Court of 2022, 209, with which it declared double taxation for spouses with different residences to be illegitimate as it is discriminatory.
We underline the penalizing reading, in the matter of IMU, which has always been made of the family unit based on civil union or marriage compared to that based on cohabitation.
Because as long as a "family unit" is not formed, according to the law (now considered illegitimate) it was possible to benefit from the double exemption for each property owner of the couple.
This, however, was not permitted to spouses or civil unions.
The Constitutional Court in sentence 209 of 2022 specifies that in our constitutional system tax measures structured in such a way as to penalize those who, thus formalizing their relationship, decide to get married or form a civil union cannot find citizenship.
The double exemption for spouses After the ruling of the Constitutional Court, spouses with different residences are also entitled to double exemption and each of them will be able to consider the property in which they reside as their first home.
Something that before the ruling was precluded to those who chose the path of marriage or civil union while it was granted to de facto cohabitants.
In a context like today's, which is characterized by great mobility in the work sector (which therefore also requires having to move in order to find a job), it can happen more and more often that spouses live apart during the week for work-related issues , to be together only on the weekend.
This need certainly does not undermine the spiritual and material communion of their relationship, but it responds to different housing needs.
To eliminate discrimination, under the same conditions, between cohabitants and married/civil unions, the Constitutional Court has re-established the double exemption also for those who are married and have different residences.
The rule applies even if the homes are in the same municipality.
Precisely in light of the new situation foreseen, therefore, the Court of Cassation rejected the Municipality's appeal.
The Court of Cassation in its ruling reiterated that in the event of separation or divorce, the taxable person of the IMU is the spouse to whom the marital home is assigned through a jurisdictional provision.
However, this is not something new, in fact article 4 paragraph 12-quinquies of Legislative Decree no.
2 March 2012 applies.
16.
The Municipality therefore in the present case erred in the application of an existing law.
read also IMU 2023, how the discount works for the rent at an agreed rate Imu separated and divorced, the legislation already existed As specified by the Court of Cassation itself, even before the ruling of the Constitutional Court cited by the Court of Cassation, the question of ex-spouses were legislated so that anyone who is called upon to move away from home after the separation or divorce sentence is not subject to the payment of IMU on the property.
Even if you no longer reside in the same property.
Only the spouse who maintains the right of residence on the property is required to pay the IMU (obviously if it is a luxury property, in all other cases, however, the IMU is not due).
And the rule that provides for this exemption is to be found in Article 4, paragraph 12 quinquies of Legislative Decree 16 of 2012 which establishes that the separation or divorce sentence which assigns the marital home to one of the two spouses gives rise, for this lastly, a right of residence on the property.
IMU, it is not always the owner who pays.
It is precisely the right of residence that eliminates the obligation to pay the IMU on the part of the spouse who has left the home (even if it is the owner), transferring it 100% to the one with the right to home.
The spouse who is not assigned the property, in fact, loses the right to enjoy it against his will (the assignment depending on the judicial authority) and must transfer his residence to another home which will, in turn, become the main residence.
It should be remembered, at this juncture, that the right to pay the IMU does not always fall on the owner because the tax is borne by: owners; owner of the right of residence, surface, use and usufruct (therefore in the case of the ex-spouse the payment is due to whoever has the right of residence, regardless of who the owner is); concessionaire, in the case of state-owned areas.
read also Imu 2022: exemptions and news

Author: A.W.M.

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