Tax incentives and investment in machinery: Court of Cassation Order no. 29774/2025

The subject of tax incentives for businesses has always been at the center of heated debates between taxpayers and the financial administration. In particular, the correct identification of the moment in which an investment can be considered effectively made represents a crucial point for benefiting from significant tax relief, while avoiding disputes during tax audits. Recently, the Court of Cassation has returned to rule on this aspect with Order no. 29774 of November 11, 2025, providing essential clarifications on the regulations of the so-called "Tremonti ter" and the fiscal accrual criteria to be applied.

The scope of the Tremonti ter and the dispute

The dispute analyzed by the judges of legitimacy stems from the application of Article 5, paragraph 1, of Decree-Law no. 78 of 2009. This provision established an important incentive for businesses: the exclusion from taxable income of an amount equal to 50% of the value of investments in new machinery and equipment. However, the benefit was temporally limited to investments made between July 1, 2009, and June 30, 2010. In the case at hand, the taxpayer E. F. was in dispute with the State Attorney's Office (A.) regarding the entitlement to this benefit, with the Regional Tax Commission of Salerno having initially ruled in favor of the private party. The Court of Cassation, however, overturned this outcome, emphasizing the need for interpretive rigor based on the rules of the TUIR.

Regarding the tax relief for investments in machinery, the tax incentive pursuant to art. 5, paragraph 1, of D.L. no. 78 of 2009, converted with amendments by Law no. 102 of 2009 (the so-called Tremonti ter), postulates that, in the period from July 1, 2009, to June 30, 2010, the taxpayer must have effectively incurred the cost of such investments, requiring, to this end, regard to the provisions of art. 109, paragraph 2, letter b), of the TUIR with reference to the provision of services.

This principle establishes a fundamental rule: to determine whether an investment falls within the subsidized period, one cannot proceed arbitrarily or rely exclusively on verbal agreements or partial payments, but must strictly follow the accrual criteria provided by the Consolidated Law on Income Taxes (TUIR). The Court of Cassation clarifies that the moment the cost is incurred does not necessarily coincide with the monetary disbursement, but with the fiscal maturation of the cost itself, which for services is linked to the completion of the performance.

The application of Article 109 of the TUIR

The reference to Article 109 of the TUIR represents the heart of the decision. This general rule governs the components of business income, establishing objective criteria for the temporal allocation of costs. In particular, for companies intending to access tax bonuses linked to investments, it is essential to remember that costs are considered incurred:

• For movable assets, on the date of delivery or shipment, or, if different and subsequent, on the date on which the transfer of ownership occurs;
• For the provision of services, on the date on which the services are completed, regardless of the time of invoice payment;
• In the case of complex contracts or those with deferral clauses, upon the occurrence of the specific contractual conditions provided.

In the context of the Tremonti ter, if a company has commissioned a service or the installation of a machine, the right to tax relief arises only if the service was effectively completed by the peremptory deadline of June 30, 2010. It is therefore not sufficient to have signed a preliminary contract or to have paid a deposit if the economic substance of the operation was perfected outside the time window prescribed by the legislator.

Conclusions on the impact for taxpayers

Order no. 29774/2025 confirms the rigorous orientation of the jurisprudence of legitimacy in requiring that tax incentives be supported by a correct temporal allocation of costs. For companies, this means that tax planning and the preservation of documentation supporting investments (such as delivery notes, transport documents, or certificates of completion of works) become discriminating elements to avoid tax recovery and heavy penalties. In conclusion, the ruling reiterates that legal certainty in tax matters inevitably passes through compliance with general principles of accrual, which serve as a compass both for the taxpayer in the preparation of financial statements and for the Financial Administration during audits.