taxes for the transfer of the house to the children

Is it true that, in the event of a divorce, the ownership of a property by children is exempt from all taxes?

One of our readers asks us if it is true that, in case divorcein the transfer of assets to children do not pay taxes. The issue has recently been the subject of much clarification by both the Revenue Agency and the case law.

Under the current approach, all agreements aimed at regulating family relations after the dissolution of the marriage are exempt from any tax. But for this it is good to respect some conditions. Let’s see what they are.

Are there any taxes on home transportation for children?

According to the United Division of Cancellation [1], real estate transfers under separation and divorce agreements are exempt from any tax. Basically you do not have to pay the registration fee, the stamp duty and any other tax.

This benefit applies in both cases separation that of divorce. In addition, not only real estate transfers between spouses but also those from spouses to children fall within the scope of this exemption.

Just to give an example, the husband can register his house in his wife’s name (or transfer his share from the community to it) without this transfer requiring the payment of taxes. And in the same way it can do to the child.

However, the transfer must be a consequence of an agreement and therefore continuous consensual separation. Indeed, in the event of a legal separation (ie arising out of regular reason between the spouses), the judge may not order transfers of property but only the return of the property. right of residence to the spouse with whom the children go to live permanently.

Donating a house to a child with a divorce or divorce: what taxes?

The position supported only today by the United Departments of Cancellation was the subject of a previous clarification by the Revenue Agency, which issued a circular in 2012. [2] had recalled the complete exemption from all taxes of any real estate transfer agreement between spouses by the decision of separation or divorce. This is because Article 19 of the Law of 6 March 1987, no. 74 stipulates that “all acts, documents and provisions relating to the procedure for dissolution of marriage or termination of the civil consequences of marriage, as well as enforcement and insurance proceedings aimed at the payment or revision of checks to art. 5 and 6 of Law 1 December 1970, no. 898, are exempt from stamp duty, registration tax and any other tax “.

As clarified by the Constitutional Court [3]The need to facilitate access to judicial protection, which justifies the tax benefit in relation to the divorce proceedings, is also present in the separation decision, as it aims to facilitate and promote, in the short term, an appropriate solution to ensure the fulfillment of obligations imposed on the non-custodial spouse of the offspring.

Therefore, the exemptions from the payment of taxes on real estate transfers refer to all the acts, documents and measures that the spouses take to regulate their legal and financial relations in case of dissolution of the marriage or termination of the civil property.

This exemption should be considered to apply to property agreements not only which refer directly to the spouses (such as agreements involving the recognition or transfer of sole ownership of movable and immovable property to one or the other spouse) but also to agreements relating to provisions in favor of children.

Do you need a notary to transfer the house to the children?

It’s possible handed over the house to the children, in case of separation or divorce, even without a notary if the procedure is conducted in court. The judge’s sentence is already a public act, like a notarial deed, and can therefore be transcribed in public real estate books without having to address the notary as well. However, the issue is strongly criticized by the notary that the registrar does not have the skills to properly identify the property and to write in practice all the useful information for the transfer of the property.

Transportation at home to children instead of maintenance

We often wonder if the donation of the house to the children can be “exchanged” in exchange for the waiver of the alimony of the latter. Could the father, for example, make the house his son’s name, thus avoiding paying alimony to the latter? Even if such an agreement is valid, it is still subject to the examination of the possibility of the judge representing the minor in the trial. The judge must carefully evaluate the agreement and verify that it is not contrary to the moral and material interests of the minor.

In any case, even the transfer of the property to the child does not affect the ability of the parent with whom the child lives, if the child’s needs change, to request a review of the sentence and receive additional cash benefits. Basically, it cannot be ruled out that, for the future, the court may issue a subsequent order amending or incorporating the previous agreement between the parents, paying a further contribution to the father by paying a monthly sum of money.

By separation or divorce, the first home can be transferred to the children

As is well known, the law requires that the property purchased with first home bonus not sold before five years from the operation. Otherwise, the difference between the taxes actually paid at the time of the sale and those that would have been paid in the absence of a tax benefit is required, except for a 30% fine. Well, again according to the Revenue Service [2], this rule does not apply in the context of agreements between spouses regarding separation and divorce. This means, for example, that the father can transfer the first residence to his children, before the age of five, without paying taxes and, at the same time, without having to return to the State the first residence allowance he had enjoyed in time.of buying the same.


Note

[1] Cass. SU sent. n. 21761/2021.

[2] Revenue Circular Ag. 27 / E of 21.06.2012.

[3] G. Const. Apost. June 11, 2003, Law 202.

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