The legislative Decree 18^th September 2024, no. 139, published in the Official Gazette last 2^nd October, in force from 1^st January 2025, acts on the taxation for registration tax purposes of confirmatory deposits and down payments agreed upon during preliminary negotiation.

The Decree mainly acts in two ways:

1. By unifying the fiscal treatment between deposit and down payment, which will both be taxed at the rate of 0.5%, therefore eliminating the higher rate currently applicable to down payments (3%);
2. Without prejudice to the principle that these are, in any case, tax payments which constitute an advance on the registration tax due for the final contract (‘In both cases, the tax paid shall be attributed to the main tax due for the registration of the final contract’), the rule, already widely supported in doctrine, of limiting the maximum amount of the tax due at the preliminary stage to that then due for the final contract (‘the rate of 0.5 per cent or the lower tax applicable for the final contract shall apply’) is explicitly dictated.

The latter principle could have a relevant impact on the drafting of preliminary contracts starting from January 2025, by raising as systematic a drafting modality that, until now, was provided for by the law only in the case of down payments included in promises of sale subject to VAT under paragraph 2 Note II-bis) of the Tariff - Part I - attached to the consolidated text on registration tax; in other words, the possibility to request tax benefits by making the related declarations, even if referred to the time of the final contract, already at the time of the preliminary contract.

In fact, in order to avoid paying in advance ‘non-recoverable’ taxes at the time of the registration of the final contract, it would be fundamental to request the tax benefits that one intends to take advantage of at the time of the final contract right from the stipulation of the preliminary contract, therefore allowing the correct application of the new regulation.

 Studio Notarile Associato Gambacorta

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