TOSAP and Public Land Occupation: The Court of Cassation Clarifies with Order No. 16808/2025

The Court of Cassation, with Order No. 16808 of June 23, 2025, has provided a decisive interpretation on the Tax for the Occupation of Public Spaces and Areas (TOSAP). This ruling, which rejected the appeal of M. F. against D. F., confirming the decision of the Court of Tax Justice of the Second Grade of Puglia of January 22, 2024, is fundamental for understanding the criteria for taxability.

The Case and the Supreme Court's Ruling

The dispute concerned the obligation to pay TOSAP for the economic exploitation of an area intended for parking, located outside a multifunctional sports complex and granted for use to the taxpayer. The Supreme Court established a far-reaching principle. Here is the full text of the ruling:

In the matter of the tax for the occupation of public spaces and areas (TOSAP), pursuant to articles 38 and 39 of Legislative Decree No. 507 of 1993, the tax is due not only in relation to the limitation or withdrawal from normal and collective use of part of the public land, but also in relation to the particular and exceptional use for which the tax represents the consideration, regardless of that limitation, i.e., for a pure and simple correlation with particular utility different from the general use. (In this case, the Supreme Court confirmed the challenged measure which had deemed the economic exploitation of a parking area located outside a multifunctional sports complex granted for use to the taxpayer subject to the tax).

The ruling clarifies that TOSAP is not solely linked to the impediment of public use. The tax is due whenever a subject carries out a "particular and exceptional use" of public land that confers a specific benefit, even if access to the public is not completely prevented. The determining factor is the "correlation with particular utility different from the general use," as in the case of parking serving a commercial activity.

Practical Implications

Order No. 16808/2025 has significant implications for those who use public spaces. The key points are:

• Criterion of Withdrawal: No longer sufficient to exclude the tax.
• Particular Utility: The decisive element is the economic/functional advantage for the occupier.
• Parking Lots: The exploitation of parking areas related to economic activities is subject to TOSAP.
• Broad Applicability: The principle extends to various situations (e.g., loading/unloading of goods, outdoor seating) that confer a specific advantage (Articles 38 and 39 of Legislative Decree No. 507/1993).

Conclusions

The Court of Cassation's Order consolidates a fundamental principle: TOSAP arises whenever a subject makes a "particular and exceptional use" of public land that confers a specific advantage, regardless of the physical withdrawal from collective use. It is essential for those operating on public land to carefully assess their tax position to prevent disputes.