TOSAP and Concessionaires: The Court of Cassation Clarifies Exemption with Order No. 16864/2025

The Italian tax landscape is often dotted with nuances and interpretations that make the correct application of regulations a real challenge. A striking example is offered by a recent ruling of the Court of Cassation, Order No. 16864 of June 23, 2025. This judgment, which rejected an appeal against the decision of the Regional Tax Commission of the Taranto Branch of November 21, 2022, focuses on a specific and highly relevant practical aspect: the exemption from the Fee for the Occupation of Public Spaces and Areas (TOSAP) for public works concessionaires. Let's examine the meaning and implications of this important ruling together.

The Case Before the Court of Cassation: TOSAP and Public Works

The issue examined by the Supreme Court concerned, in essence, the claim of a concessionaire (in this case, a company identified by the initials M.) to benefit from the TOSAP exemption, normally reserved for the State and other public bodies. The dispute pitted M. against a party D., representing a typical controversy in local taxation matters. The occupation of public spaces was functional to the construction and management of a work of public utility, specifically a section of the motorway network with an elevated viaduct. The central question was: can a concessionaire company, which constructs and manages a public work owned by the State, enjoy the tax exemption provided for the State itself?

The Court of Cassation, with its Order, provided a clear and decisive answer, consolidating an orientation already expressed in previous rulings. The core of the decision lies in the interpretation of Article 49, paragraph 1, letter a), of Legislative Decree No. 507 of 1993, the key regulation concerning TOSAP.

In the matter of the fee for the occupation of public spaces and areas (TOSAP), the exemption provided for the State and other bodies by art. 49, paragraph 1, letter a), of Legislative Decree No. 507 of 1993, requires that the occupation, as a prerequisite for the tax, be attributable to the exempt subject. Therefore, in the case of occupation of spaces belonging to the State's public domain or non-disposable assets by a concessionaire company for the construction and management of a public work (in this case, a section of motorway including an elevated viaduct), the exemption is not applicable to the company, as it is the company that carries out the construction of the work and its economic and functional management. It is irrelevant that the work is owned by the State, to which management will revert at the end of the concession.

This maxim is of fundamental importance. It tells us that the TOSAP exemption is not linked to the public nature of the work or the ultimate ownership of the asset, but rather to the subject that materially and functionally occupies the space. If the occupation is attributable to a private entity, even if it is a concessionaire of a public work, the exemption does not apply. The Court of Cassation emphasizes that the concessionaire company is the executor of the construction and the economic and functional manager of the work, assuming the risks and benefits of the activity. The fact that the work is owned by the State and that management will revert to the State at the end of the concession is irrelevant for the application of the tax.

Legal Basis and Jurisprudential Precedents

The decision of the Court of Cassation is based on a strict interpretation of Article 49, paragraph 1, letter a), of Legislative Decree No. 507/1993. This provision establishes the exemption for occupations carried out by the State, Regions, Provinces, Municipalities, and their consortia, as well as by public bodies referred to in art. 87 of Presidential Decree No. 602/1973. The key point is that the occupation must be directly attributable to these subjects. In the case of a concession, the occupation is attributed to the concessionaire, who acts in their own name, albeit for a public interest.

This position is not new. The Court referred to consistent precedents, such as judgment No. 11886 of 2017, which had already outlined this principle. Other rulings, such as No. 2164 of 2024 and No. 15010 of 2023, while not directly in point, have contributed to defining the interpretative framework regarding taxes and liable parties.

The Court of Cassation's reasoning aligns with a view that clearly distinguishes between the ownership of the asset and the entitlement to the activity of occupation and management. The concessionaire, by virtue of the concession contract (regulated at the time by Legislative Decree No. 163/2006, art. 143, and today by the new Public Contracts Code), assumes responsibility for the construction and management of the work, with the related burdens and benefits. In this context, the occupation of public land is not an action of the State, but an activity carried out by the concessionaire to pursue their contractual and entrepreneurial objectives, albeit within the scope of a public service.

Practical Implications for Concessionaires and Local Authorities

The consequences of this order are significant:

• For Concessionaires: They must consider TOSAP as an ordinary cost of their business, as they cannot rely on state exemption. This impacts financial planning and the formulation of bids in tender processes.
• For Local Authorities: The ruling strengthens their ability to impose and collect TOSAP even in the presence of public works carried out through concessions, ensuring certain revenues and clarity in application.
• Principle of "Subjectivity" of the Tax: The principle that the tax falls on whoever concretely carries out the taxable event, i.e., the occupation, regardless of the ultimate public purpose of the work, is reaffirmed.

Conclusions

Order No. 16864 of 2025 by the Court of Cassation represents a firm point in the interpretation of TOSAP exemptions for public works concessionaires. It confirms that the entitlement to the occupation is the determining criterion for the application of the exemption, excluding that concessionaires can benefit from a favorable tax regime reserved for public bodies. This clarity is fundamental for all operators in the sector, both public and private, and contributes to greater legal certainty in tax matters in an area as sensitive as infrastructure and public services. It serves as a reminder to carefully assess tax burdens from the design and negotiation phases of concession contracts.