Superbonus with the unknown capital gains on condominium works

Interventions on common condominium parts, 'towed' free building works, inherited buildings or buildings on which, despite carrying out the facilitated works, no tax benefit has been enjoyed. There are many questions arising from the new rules on capital gains deriving from the transfer for consideration of buildings on which superbonus works have been carried out, highlighted by Study No. 15-2024/T of the National Council of Notaries.
The intent of the document is to try to limit the perimeter of applicability of the new provisions, potentially so wide as to create almost paradoxical situations, albeit with the utmost caution necessary whenever it is necessary to go beyond literal interpretation in the absence of official clarifications.

An important aspect examined by the Notariat concerns the possible applicability of the new case of taxable capital gain where the intervention concerned only the common condominium parts and not directly the real estate unit being transferred.
The study seeks to enhance the connection between the event generating the capital gain and the specific objective and subjective traceability of the intervention to the real estate unit and to the figure of the transferor, reaching the conclusion that only the superbonus works carried out on the latter can bring the capital gain within the scope of the new letter b-bis) of paragraph 1 of Article 67 Tuir.
Conclusion to be taken with great caution, since, on the one hand, the illustrative report seems to refer the novelty also to works carried out on the common condominium parts, on the other hand, the increase in value suffered by the single real estate unit may well derive also from improvements (coat, central heating system) carried out precisely on the common parts. The issue, however, will have to be examined in depth, since the individual condominium owner may not only have voted against the implementation of the works at the meeting (even though he could not avoid them), but may also have consented to the assumption of the entire expense (and, therefore, of the full deduction) by one or more other condominium owners.

According to the study, it appears tenable to assert that only superbonus interventions of a certain importance, constituting at least extraordinary maintenance, would be relevant for the purposes of the taxability of the capital gain, while those of mere ordinary maintenance or, more in general, those that can be carried out in free building should not be considered.
Conclusion that, in the writer's opinion, should be appropriately coordinated with paragraph 13-ter of Article 119 of Decree-Law no. 34/2020, according to which the facilitated interventions (with the exclusion of those involving demolition and reconstruction) should be classified as extraordinary maintenance.

Another issue to be resolved (in addition to that of real estate received by inheritance, see 'Il Sole 24 Ore' of 9 February 2024) concerns the hypothesis in which the real estate unit has been affected by a superbonus intervention, but the transferor has not enjoyed any tax benefit, not because enjoyed by others (the provision calls into question the expenses incurred also by the 'other entitled parties') but for a specific will, for example having returned the bonus by resorting to the voluntary redemption.
The (appreciable) objective seems to be that of avoiding that minimal facilitated interventions may lead to taxation of capital gains that, in reality, are due to other causes (position of the property, years elapsed since the purchase) and that, without the marginal superbonus intervention, would not have determined taxable matter on the basis of the other letters of paragraph 1 of Article 67 Tuir.