•
At any time the lessee has a pre-emption right to
purchase the premises, if the seller is going to sell. This
does not apply if the seller sales the whole building.
•
At any termination the lessee has the right, if forced to leave
for termination of the contract and not for breach of payment,
to receive a compensation from the lessor equal to 18 months
of rent.
Î
Lease of business’ branch
(affitto di ramo
d’azienda)
•
To avoid the limitations of the civil code, the lease of business
is often used, specially in premises located in shopping centres.
•
The parties need to demonstrate which branch of business is
leased.
•
In the shopping centres the general licence to open and ope-
rate the centre helps to deem the single premise as branch of
one main business.
Î
Transfer of business in the lease contract
•
Principle of freedom of assignment of the business apply to
lease lease of business only. Right to sublease may be granted
in the lease agreement.
Î
Evolution of the rent during the initial lease
•
Rent is usually yearly adjusted in accordance with an indexa-
tion clause providing for an evolution of the rent on the basis
of ISTAT (National Institute of Statistic) index:
- 75% (maximum) for the commercial contracts with 6+6
years duration.
- up 100% for residential contracts or longer commercial
contacts (7+6 minimum).
Î
Term of the renewed lease
•
No increase of rent is possible after the first 6 years period. At
the end of the 12 years period free negotiation is foreseen by
the law.
TaX
Î
Tax regime applicable to an asset deal
•
The building transfer is subject to a different VAT and transfer
tax treatment depending on the cadastral enrolment.
•
Mainly, the applicable indirect taxation depends if the building,
or units in which it is divided, are registered for residential
purposes or for commercial purposes.
•
The tax regime is the following, assuming that the purchaser is
an Italian incorporated and VAT registered company.
Commercial
•
Commercial buildings are subject to two different VAT regimes:
- Exemption regime (ordinary regime)
No VAT has to be added to the transaction; the total
amount of the cadastral and mortgage taxes will be equal
to the 4% of the purchase price, plus registration tax
amounting to a fixed amount of 200 Euros;
- 22% VAT regime (optional regime)
Investor Guide to Europe 2014
| 49
The vendor may
opt for the common
VAT regime (VAT is applied
at a 22% rate to the transaction
price). Should this be the case, the
reverse charge mechanism has to be applied
by the purchaser: it means that the vendor will
issue an invoice with no VAT and the purchaser must
issue a further document (so called self-invoice) quoting
the 22% VAT rate. The vendor’s invoice will have to be
registered in VAT registers both as input and output VAT.
Accordingly, neither economic nor financial will affect the
purchaser; it is worth mentioning that this regime is fully
available provided that the purchaser is not subject to a
VAT exemption regime on the future sales, which could
otherwise imply a partial recapture of input VAT related
to the asset deal, quantified in proportion to the ratio
between VAT exempt and non-exempt sales.
The total amount of the cadastral and mortgage taxes will
be equal to 4% of the purchase price; a further transfer
tax of 200 Euros will be added.
Residential
•
Residential units are only subject to the VAT exemption regime.
In such a circumstance a transfer tax of 9% of the purchase
price will be due. In addition, further cadastral and mortgage
taxes amounting to 100 Euros in total will be applied.
