Status of the “110 percent” and other building bonuses in the wake of the Italian Decree-Law on Energy

What follows is a summary of the situation involving the “110%” Superbonus and the “ordinary” bonuses to be used for energy efficiency and construction work on buildings, in light of the new measures introduced in recent months, the most recent being the conversion into law of the Italian “Energy” Decree-Law (no. 17 of March 1, 2022, converted into Italian Law no. 34 of April 27, 2022).

“110 percent” Superbonus

From its inception, the “110 percent” Superbonus—utilizable primarily by individuals and condominiums to finance energy efficiency and seismic work on residential properties—has been subject to continuous legal modification.

This tendency has not abated in the least and even in the early months of 2022 new regulations governing this area have been issued in continuation.

What’s more, the content of the regulations has changed significantly. In fact, while until summer 2021 lawmakers were focused on improving the substance of the rules—with the intent of increasingly broadening, clarifying and simplifying the application of the Superbonus—by fall 2021, attention had rapidly shifted to procedural regulations, to prevention and controls designed to avoid the fraud that had emerged

• in the ever-more intense and widespread application of the various bonuses
• and in the “unlimited” granting of tax credits that were the fuel feeding them.

A change in orientation typical of a phase of maturity of tax bonuses, probably combined with the expected end of the pandemic crisis (which, unfortunately, did not materialize).

Given below is an updated picture of the major innovations in recent months and others which could be expected in the near future.

Limited transferability for the tax credits generated by the Superbonus and ordinary bonuses

Having terminated at the end of 2021 the phase in which the unlimited transfer of the tax credits generated by the various bonuses was possible, in the early months of 2022, lawmakers have moved in a fairly confused way in search of the right balance that limits the number of tax credits allowed and the types of assignees (the purpose being to track these credits as they circulate), but without blocking the entire process. In fact, without transferability of the credits, the bonus process is destined to collapse quickly, with a range of consequences that are anything but desirable.

The most recent solution outlined is that:

• in the event of “invoice discount”, the supplier making the discount can use itself the tax credit acquired (i.e., to pay its taxes and contributions with compensation using form F24), or it can transfer it to any other entity that can use it “itself” or also transfer it, but only to banks, insurance companies or other financial intermediaries (“monitored entities”) and with a maximum of two transfers. The new aspect contained in the “Energy” Decree-Law is that as of May 1, 2022, banks, if and when necessary (when they are unable to use the tax credit themselves), can transfer it a final time, but only to their account holders. In essence, the credit path is limited to: taxpayer-supplier-assignee of any kind-an additional two transfers, but only to monitored entities-final transfer by a bank to an account holder;
• in the event of credit transfer to third parties other than a supplier, the path remains the same, except that the first transfer does not involve a supplier but a third party not involved in the work that generated the tax credit.

This brief description could seem abstruse and technical, but it is vitally important for everyone because, without the ability to easily transfer the tax credits, suppliers will not grant the “invoice discount” and the parties that acquire the credits (first-and-foremost, banks) cease doing so, and construction work will come to a halt.

Credit ID code and prohibition of partial transfer

As of May 1, 2022 (in reference to communications of the first transfer or invoice discount sent to the Italian Revenue Agency as of that date), the credits generated by the tax bonuses cannot be part of partial transfers subsequent to the initial communication to the Revenue Agency. For this reason, the credit is assigned a unique ID code to be included in the communications of any subsequent transfers.

In essence, every credit will circulate with the same amount as the first transfer (while, until now, partial transfers were also possible, resulting in greater flexibility in their use) and will be identified by its own code to simplify controls by the Revenue Agency.

Economic congruity certificate and conformity visa

The other important aspect introduced in recent months involves the extension of the instances in which taxpayers eligible for tax bonuses are required to obtain an economic congruity certificate (issued by a qualified structural engineer) and a conformity visa (issued by an accountant, labor consultant or the manager of a tax assistance center – CAF). These requirements apply:

• for the Superbonus, in all cases of tax credit transfer (including through “invoice discount”), and also in the event of use as a taxpayer income tax deduction, unless the income tax form pre-compiled by the Revenue Agency is used, or tax assistance is provided by the taxpayer’s employer or pension agency (the requirement remains if a professional or CAF is used);
• for “ordinary” bonuses, in the event of credit transfer or “invoice discount”, with exemption for “free” building work and work that does not exceed a value of €10,000, except for the “façade bonus” for which the congruity certificate and conformity visa are always required, unless the taxpayer uses the bonus as a deduction in his/her income tax return.

Double control of economic congruity for some assets

With a recent decree of the Italian Ministry of Ecological Transition (D.M. of 02/14/2022), which took effect on April 15, 2022, the specific maximum amount permitted for many assets covered by energy efficiency work was updated.

This means that for these assets, a double economic congruity control must be performed, in terms of both the maximum prices set out in the Ministerial Decree and the official price lists allowed (those of the Chambers of Commerce, Civil Engineering Boards or Regions and Autonomous Provinces). If the price charged by the supplier is higher, the right to the bonus remains, but is limited to the lower amount of the two references cited.

Stricter sanctions for structural engineers

Qualified structural engineers who, in their technical assessments of the work done and regarding economic congruity, provide false information or omit referring important information regarding the technical requisites of the project or actual realization of the work, or falsely attest to the congruity of the expenditures, is punishable by a jail sentence of two-to-five years and a fine of between €50,000 and €100,000. In addition, if this is done to obtain unfair profit for themselves or others, the sentence increases.

This provision is in addition to that already in effect in the original Superbonus legislation which, in addition to the application of penal sanctions where a crime is involved, also includes an administrative fine of €2,000 to €15,000 for each inaccurate certification or assessment given, to be borne by those who issue the inaccurate certifications and assessments, as well as the requirement to take out a civil liability insurance policy for damage to the State and the client, since the non-veracity of the certifications and assessments also results in the annulment of the tax credit.

Requirement to formalize compliance with collective labor agreements

As a measure to promote work site safety, from end-May 2022, it is compulsory to declare specifically in procurement contracts over €70,000 and related invoices, “that construction work has been performed by employers who adhere to national and local construction sector collective contracts drawn up by the employer and union associations comparatively more representative on a national level”.

Failure to include this declaration results in the loss of the right to (both ordinary and “110 percent”) bonuses and, towards this, verification will be performed by the entities that issue the “conformity visa”, as well as the National Labor Relations Board, INPS (National Institute of Social Security) and Building Funds.

Therefore, maximum attention from contractors, clients and condominium administrators.

Expected extension of the Superbonus for single-family homes

Expected shortly is the highly-awaited extension of the Superbonus for work on residential units by private individuals. Currently, the Superbonus applies in these cases to expenditures made by December 31, 2022, on condition, however, that as of June 30, 2022, at least 30% of the total work was completed.

There have been insistent requests for a “slackening” that could translate into an extension, by a few months, of the deadline by which at least 30% of work must be completed (currently set at June 30, 2022).

It remains to be seen if lawmakers will also take action on other deadlines set for end-June, especially the one involving the Super Earthquake Bonus for the purchase of properties on which earthquake risk prevention work was carried out.

Conclusions

Inevitably, what we have presented still requires additional attention in the assessment and management of paperwork by all those involved—consultants and professionals, contractors, condominium administrators and taxpayers—to best handle the opportunities and risks involved in this detailed legislation regarding bonuses to improve building efficiency.

Article by Stefano Baruzzi, chartered accountant and legal auditor, real estate tax expert,
Head of Real Estate Contracts, Tax & Fiscal for Morning Capital Srl