Capital Gains from Disposal of Holdings and Properties Under Construction: Clarity from the Court of Cassation with Order 14800/2025

In the complex Italian tax landscape, the interpretation of regulations is fundamental. The exemption of capital gains from the disposal of holdings (PEX) is a tax benefit of great importance. The Court of Cassation, with Order No. 14800 of 02/06/2025, intervenes on a crucial aspect: the commercial nature of a subsidiary company holding properties under construction. Let's explore the significance of this ruling.

The PEX Regime and the Commerciality Requirement under Art. 87 TUIR

Article 87, paragraph 1, of the Consolidated Text of Income Taxes (TUIR) governs the exemption of capital gains from the disposal of holdings. Among the requirements, the company whose shares are disposed of must carry out a commercial enterprise. Letter d) of Article 87 presumes non-commerciality for companies whose value is predominantly constituted by non-instrumental real estate. But what happens if the property is instrumental, even if still under construction?

The Issue Before the Court of Cassation: Property Under Construction and Business Activity

The case examined by the Supreme Court, in the dispute between A. and F., concerned precisely the qualification of a subsidiary company with an instrumental property under construction, intended for hotel activities. The Regional Tax Commission of Rome had excluded commerciality and the PEX benefit. The Court of Cassation, with rapporteur Alberto Crivelli, rejected this approach, providing a more substantive interpretation.

For the purpose of the tax exemption benefit for capital gains derived from the disposal of holdings, as per Art. 87, paragraph 1, TUIR, the requirement for the subsidiary company to carry out a commercial enterprise shall not be excluded - due to the irrebuttable presumption of non-existence contained in letter d) - where the instrumental property for the exercise of the business activity envisaged in the company's object (in this case, hotel activities) is under construction in the three years preceding the disposal, as this is preparatory activity aimed at equipping the company with an autonomous organizational structure, provided that the same business activity is subsequently commenced in the property.

This maxim is fundamental. The Court established that the construction phase of an instrumental property, intended for the business activity envisaged in the company's object (e.g., a hotel facility), does not exclude the commercial nature of the company. Even if construction occurs in the three years preceding the disposal of holdings, it is recognized as essential "preparatory activity" to equip the company with an autonomous organizational structure. The condition is that the actual business activity must subsequently commence in the property. This interpretation overcomes formalistic views.

Practical Consequences of the Ruling

The decision of the Court of Cassation has a direct impact on companies and investors, offering greater legal certainty in managing holdings in companies with real estate assets under development. Key points:

• The construction of an instrumental property is recognized as an integral and preparatory part of the commercial activity.
• The property must be intended for the business activity specified in the company's object.
• The actual commencement of activity in the property is a condition for the validity of the PEX benefit.
• The ruling is based on the interpretation of Art. 87, paragraph 1, letter D of DPR 917/1986 (TUIR).

This interpretation is crucial for sectors such as real estate and tourism/hotel, where development times are long.

Conclusions: A Beacon for Tax Planning

Order No. 14800 of 2025 by the Court of Cassation represents a significant reference point for Italian tax law. By recognizing the value of preparatory activity, the Supreme Court provides greater predictability and legal certainty to businesses, encouraging investment and dynamic management of corporate assets. For correct application, it is always advisable to seek the advice of legal and tax experts.