Determination of cadastral income of the wind farms: the Italian Tax Authority complies with the Supreme Court

The Article 1, paragraph 21, of Law No. 208 of 28 December 2015, provided that "As from 1 January 2016, the determination of the cadastral income of real estate for special and particular use, censusable in the cadastral categories of groups D and E, is carried out, by means of direct estimation, taking into account the land and buildings, as well as the elements structurally connected to them that enhance their quality and utility, within the limits of ordinary appreciation".

The same provision provides that "machinery, devices, equipment and other facilities, functional to the specific production process, are excluded from the same direct appraisal".

Therefore, there has been a change in the components to be considered in the direct estimate, including those of a real estate nature oriented to the determination of the cadastral income and excluding those of a plant nature, aimed solely at the production process. 

As clarified by Circular No. 2/E of 1 February 2016, these are all those components "that perform specific functions within a given production process and that do not give the property an appreciable utility in any case, even if the production cycle carried out within it is modified" regardless of their dimensional relevance.

Basically, therefore, as of 1 January 2016, the definition of the cadastral income of real estate with a special purpose (included in cadastral categories D and E) is performed by means of a direct estimate. In this regard, the land, buildings, and elements structurally connected to them are considered. On the contrary, machinery, devices, equipment, and other facilities, functional to the specific production process, are excluded from the direct valuation.

With regard specifically to wind farms, these constitute structures intended to produce electricity through the exploitation of wind energy, generally consisting of a series of wind generators with the relevant foundation works, transformer and control cabins, electrical installations, cables for connection to the grid and ground works.

Circular No. 2/E of 2016 confirmed that, as from 2016, wind turbines (rotors and nacelles) are no longer subject to appraisal, and Circular No. 27/E of 2016 further clarified that, considering their typological-constructive properties, the support structures (towers) of wind turbines of wind farms are to be included among the constructions, considering their characteristics of solidity, stability, volumetric consistency, and ground immobilization. 

According to the circular, therefore, the following would have to be subject to cadastral valuation: the ground, the towers with their foundations, any technical rooms housing the control and transformation systems, and lastly, the various accommodations located within the perimeter of the real estate unit.

This unacceptable position of the Authority (towers included in the calculation of the cadastral annuity) has generated a series of countless appeals in the past that, correctly, aimed at the exclusion of the support tower from the calculation of the cadastral annuity as it was clearly an inseparable and fundamental part of the energy production plant. Initially, the case law was not univocal, and some tax courts had a position in line with the Authority's circular, but later, also thanks to the support of numerous engineering studies and technical opinions, a practically univocal jurisprudence (first and foremost the Supreme Court) against the above-mentioned Authority's circular was consolidated - as was predictable and desirable. 

Finally, with the recent Circular 28/E of 16 October 2023, the Tax Authority has taken note of the now consolidated jurisprudential orientation of legitimacy, thus explaining that: "the entire "rotor-vessel-tower" complex must be considered excluded from the cadastral estimate, and must therefore be considered a plant unicum, functional to the specific energy production process, without prejudice to any specific construction peculiarities of the plant".

As a result of this position, the Central Office of the Tax Authority invites the local ones to: 're-examine any pending disputes concerning the matter under consideration and, where the office's activity has been carried out according to non-compliant criteria, to abandon the claim'.

It is hoped that this will be the epilogue to an endless series of disputes that have contributed to clogging up some Tax Court (especially in southern Italy) causing an understandable and inevitable delay in their work.