The Court of Cassation reaffirms the yes to the 'cedolare secca' for business tenants

Repetita iuvant. The cedolare secca must be applied on house rents even if the tenant is a company that stipulates contracts for the housing needs of its employees. If the message that arrived last year with judgement 12395/2024 was not enough, two confirmations now arrive from the Supreme Court with judgements 12076 and 12079/2025. The flat taxation regime cannot be denied if the counterparty is an economic operator with VAT registration, but who enters into the agreement to meet the housing needs of one of his employees.

A position on which the Revenue had maintained a rigid line of closure, even after the Supreme Court's pronouncement a year ago. First an answer to an interpellation by the Dre Toscana and then a reply by the Ministry of the Economy dated 26 March to a question in the Finance Committee of the Chamber of Deputies of the M5S (first signatory Emiliano Fenu) had specified that a single opening by the Supreme Court could not suffice. In fact, the reply document of the Economy argued that 'the Revenue Agency considers it appropriate to wait for the formation of a consolidated interpretative guideline, also to protect the needs of tax revenue'. All this due to the fact that, according to the financial administration, on the coupon for business tenants, a line of contentious is developing at the same time (with different Tax Courts) that is also leading to different outcomes, with a part of the jurisprudence that is aligning itself to the Revenue Agency's indications, in contrast with the Supreme Court's ruling.

Now, however, that precedent of a year ago is no longer isolated. The two cases brought to the attention of the judges of legitimacy have the same common thread linking them: in judgement 12076 the case concerns a rental contract to afoundation for the housing needs of its president, while in judgement 12079 acompany is involved for the housing of its director. In both cases, the Court of Cassation came to the conclusion that 'the landlord was in any case entitled to apply the regime of the cedolare secca'.

According to the pronouncements, no contrary interpretative arguments can be inferred from Article 3, paragraph 6-bis, of Legislative Decree 23/2011 (the text that introduced the flat-rate tax on rents), according to which the option for the regime can also be exercised for residential units rented to building cooperatives for rent or entities non-profit, as long as they are sublet to university students and made available to municipalities with waiver of rent updating or assignment. This is because, in the first place, paragraph 6-bis 'does not exclude at all that, on the basis of the preceding paragraphs, the landlord may exercise the option for the 'cedolare secca' with reference to a lease agreement for residential use concluded with an entrepreneur/professional and attributable to the latter's activity'.

Moreover, it should be considered that subsection 6-bis 'regulates the possibility for the landlord to opt for the 'cedolare secca' by reason not of the lease concluded with tenants housing cooperatives/non-profit entities, but rather of the sub-lease with university students: a possibility which, on the one hand, disregards the type of 'mother' contract concluded (which might not even be a lease for residential use), but which, on the other hand, requires, in order to avoid abuses or distortions of the cedolare secca, the subsequent stipulation of a sublease contract for residential use, with waiver of the Istat update, in favour of university students and the provision of the municipalities'.