La Court of Justice of the European Union has given today partially wrong to airbnb in appeal on the Italian tax regime for the short leases introduced in 2017: lo State may ask you to collect information and data on the leases carried out and above all of apply the withholding tax at the source provided for by the national tax regime. On the other hand, the judge of Luxembourg agreed with ad airbnb on the part relating to the obligation to designate a tax representative introduced by the same law n.96 of 21 June 2017, judged as "a disproportionate restriction on the freedom to provide services". The provision of the Justice Court of today - which he held in suspense airbnb for months - it has been one of the tax dowels that revolve around the issue of short-term rentals and which could change the current situation.
Italian law for short-term rentals: what the law established in Italy
La law established that starting from 2017 June 30, income deriving from non-commercial lease contracts not exceeding XNUMX days is subject to a withholding tax of 21%, due to the tax authorities, if the owners concerned have opted for this preferential rate, and the data relating to lease agreements must be forwarded to the tax administration.
When collecting royalties or playing a role in their collection, the subjects carrying out activities of real estate brokerage must perform, acting as tax substitutes, the withholding tax in question on the amount of the fees and provide for the related payment to the Treasury. Non-resident subjects without a permanent establishment in Italy are obliged to appoint, as tax managers, a fiscal agent. The approval by the Council of Ministers, on 1 December last, of the legislative decree transposing the Dac7 directive (2021/514) on administrative cooperation in the tax sector fits into this context. Once the necessary opinion of the parliamentary committees has been obtained, the directive will enter into force from 1 January 2023.
Short-term rentals: What the EU Court ruling says
THEobligation to withhold the tax according to the judges in Luxembourg, it is imposed at source both on providers of real estate brokerage services established in a Member State other than Italy and on companies that have an establishment there. There Court rules out, therefore, that it is possible to assume that this obligation prohibitions, obstacles or make it less attractive the exercise of the freedom to provide services. With respect to the part of the sentence in which the court in Luxembourg instead agreed with Airbnb, i.e. the one on the obligation to designate a fiscal agent, the fact that the tax administration already has the information submitted to it relating to taxpayers, points out the Cutting, is likely to simplify its control and gives even more prominence to the disproportionate nature of the obligation to designate a tax representative.
Airbnb: what changes from January XNUMX, those who rent must provide all tax data
In the meantime, however, since January first there will be other news for landlords registered on the platform. The goal is always the same: to map a phenomenon that often escapes legality.
Le new rules impose on platform managers lobligation to identify who sells or rents through the web portal. The data of the landlords must be communicated quarterly basis atInland Revenue, together with fees received and number of operations performed. The information relating to 2023 must be sent by 31 January 2024 and the procedures will be defined by a provision from the director.
In recent months, the platforms have sent several reminders to active landlords. “Your tax information is mandatory”, read the email sent by Airbnb to all hosts and co-hosts to request the completion of the form with the data “necessary to host from 2023”.
Managers, in fact, will have two reminders and 60 days at their disposal before blocking profiles of who earns or withhold the fees. Airbnb, for example, explains to its subscribers: “If hosts do not provide the information that must be reported to the tax authorities, we will be required to freeze payouts. In some cases, Airbnb may block host calendars." And adds an example: in case of check-in after January 1, 2023, if the host has not provided the requested information by March 2, 2023, payments for reservations with check-in after March 2, 2023 will be frozen . "After providing the tax information - he adds - the payments will be unfrozen and it will be possible to accept reservations on the platform again".
The previous rules remain valid
From 1 January 2023, all intermediaries will have to add (to the already mandatory communication to the Revenue on short-term leases) also the cadastral data of buildings (provision 86984/2022). Since 2017, real estate agencies and therefore also online portals are already required to comply with the 21% withholding tax obligation on the fees collected for landlords and to transmit the data to the Revenue by 30 June of the year following the conclusion of the contract, under penalty of fines ranging from 250 to 2.000 euros (article 4, Legislative Decree 50/2017). Since 2018 the security decree it has also imposed the obligation for the landlords to communicate the data of the guests to the preccint.
Short rentals: lack of clarity regarding local regulations
One has been long awaited database which collects all the units intended for short rent of the national territory, assigning it an alphanumeric identification code, to be used in advertisements published online (paragraphs 4-5, article 13-quater, Legislative Decree 34/2019). Meanwhile some regions they moved independently: at the moment Lombardy, Puglia, Veneto, Piedmont and Campania have a mandatory Cir code.
