Divorce deed drawn up abroad exempt even if concerning real estate located in Italy

The Italian Revenue Agency, in its answer to Interpretation no. 351/2023, affirmed that “the exemption from stamp duty, registration tax and any other tax” provided by Article 19 of Law 74/1987 and referring to acts relating to separation and divorce proceedings, also extends to agreements to settle the marital crisis stipulated abroad and transcribed in Italy by which the spouses regulate their property relations, even if concerning immovable property located in Italy.

The petitioner purchased real estate located in Italy with his spouse. Subsequently, the dissolution of the marriage was ordered by a judgment issued in Spain and the former spouses regulated their property relationships by a notarial deed. The Spanish notarial deed, however, did not contain the so-called “urbanistic mentions”  and “cadastral regularities”  required by Italian law under penalty of nullity. It was therefore necessary to file the deed drawn up abroad with an Italian notary containing the missing declarations.

In the petitioner's view, the filing with the Italian notary was a “condition for giving effect to the divorce agreements”. He therefore asked whether that document could benefit from the exemption under Article 19.

That provision provides, in fact, for exemption from direct and indirect taxation of “all the acts, documents and measures relating to the proceedings for dissolution of marriage and cessation of the civil effects of marriage as well as the proceedings, including executive and precautionary proceedings, for the payment or revision of the allowances” for separation and maintenance.

The purpose of the exemption is found in the desire to facilitate the settlement of property relations between spouses, avoiding the increase of family tensions. In particular, the intention is to promote the achievement of “a suitable solution” for the settlement of economic aspects, facilitating access to judicial protection and “avoiding that taxation may burden the spouses making it even more difficult to overcome the crisis”.

For this reason, the scope of the rule has been progressively extended over time.

At first, the Constitutional Court extended the application of Article 19 also to obligations undertaken upon separation. In particular, with judgement no. 176/1992, it declared the partial illegitimacy of Article 19 in the part where it did not include in the exemption “also mortgage inscriptions made to guarantee the obligations assumed by the spouse in the separation proceedings”. Subsequently, by judgment no. 154/1999, the Court again declared partially unconstitutional the provision in so far as it “does not extend the exemption provided for therein to all acts, documents and measures relating to the proceedings for the legal separation of spouses”.

In its Circular no. 27/2012, the Revenue Agency then clarified that the exemption in question refers to “all” the acts, documents and measures that the spouses implement with a purpose of managing the legal and economic relations connected to the dissolution of the marital relationship.

However, the recognition of the exemption originally referred only to the “necessary and not occasional” content of property agreements in the marital crisis, such as the regulation of child support obligations or the allocation of the marital home (so-called necessary content). The jurisprudence of legitimacy (see Court of Cassation no. 2111/2016), on the other hand, has extended its application “to all transfers made or planned by the spouses during separation and divorce (...) since, in any case, these are agreements aimed at a global and definitive settlement of the marital crisis” (so-called possible content).

In this sense, the Supreme Court (see order no. 4144/2021) has ruled the extension of the benefit also to “agreements that contain the recognition or implement the transfer of ownership of movable and immovable property to one or other spouse”. And finally, in its recent judgment no. 26363/2022, by virtue of the character of “global negotiation that the couple in crisis attributes to the liquidation of the marital relationship”, the Supreme Court recognised the application of Article 19 also to the transfer of shares between spouses.

The fundamental element allowing recognition of the exemption must be identified in the centrality that the agreement has for the spouses in the settlement of the marital crisis. So, all acts that serve to speed up the settlement of the marital relationship may be covered by the exemption.

By virtue of this broad interpretation of the rule, the Revenue Agency, with the answer under review, has extended the application to include documents relating to separation and divorce proceedings drawn up across borders.

In particular, in the present case, the filing of the Spanish marriage agreement with the Italian notary was a necessary act in view of the need to add to the foreign document the requirements required by Italian law under penalty of nullity, which had to be considered as a “condition for implementing the divorce agreements” with the result that taxation had to be carried out exempt from stamp duty, registration tax and any other tax pursuant to Article 19 of Law 74/1987.