First Floor

Morandi Bridge, no VAT refund to Autostrade per l'Italia

This was decided by the Cgt of Lazio in its ruling 4809 of 18 July, confirming the first instance judgement

30 July 2024

2' min read

No VAT reimbursement to Autostrade per l'Italia, holder of the motorway concession of the A10 (Genoa - Savona) section, required to pay the government-appointed extraordinary commissioner the amount of expenses for the reconstruction of the infrastructure that collapsed on 14 August 2018, the so-called Polcevera viaduct in Genoa, known as Ponte Morandi. These are the conclusions reached by the Tax Court of Lazio in its ruling 4809 of 18 July (president Terrinoni, rapporteur Chiné), confirming the first instance judgement.

The Decl 109/2018, whose legitimacy has been examined by the Constitutional Court (sentence 168/2020), in fact allows for the 'suspension' of the rules of the agreement between the grantor administration and the concessionaire, by virtue of which it would be the latter who would have to carry out the required works, with the consequent accrual of the right to reimbursement of the tax on the costs of the restoration works. In this particular case, however, there is no substitution of the commissioner for the concessionaire, nor does that person act in the latter's interest, nor is it conceivable that the extraordinary commissioner could be assimilated to the figure of the custodian, the judicial administrator or the commissioner appointed by the prefect.

The concessionaire is "merely" required by law to pay into a special account the sums provisionally determined by the commissioner (subject to adjustment), without prejudice, however, to "any assessment of responsibility for the event and of the title" on the basis of which the concessionaire is required to bear the costs of reconstruction.

According to the judges, there is also no basis for a preliminary reference to the European Court of Justice for violation of the principle of tax neutrality.

In addition to the (formal) fact that the invoices of the executors of the works are in the name of the commissioner and not of the concessionaire, the substantive premise of the transaction is also lacking, given that the sums paid by the company do not represent the consideration for the contracts entered into by the commissioner, 'but implement a special legislative provision' that excludes the holder of the motorway concession from the execution of the work, making him 'totally extraneous to VAT-taxable operations'.

It is precisely the choice not to refer the matter to the Community courts, together with the uncertainty, enshrined in legislation (Article 1, paragraph 6, Decree-Law 109/2018), on the responsibilities of the concessionaire and therefore also on the "title" underlying the payments, that could perhaps have been more meditated upon. And this, because, although the case under consideration represents an isolated (and hopefully unrepeatable) case, an ope legis suspension of the conventional rules would result in an unforeseeable increase in the burden for any default, at least until the time when it is established, to make a hypothesis, that even the amount of the tax constitutes a legitimate addition to the damage to be reimbursed.