Aggregate (Italy: “Coacervo”) of Succession and Donations

published on 11 December 2024 | reading time approx. 2 minutes

The National Council of Notaries, in its recent Study No. 101-2024/T, examines the effects of Legislative Decree 139/2024, focusing on the impact related to the aggregate of succession and donations. The document clarifies interpretative issues regarding donation aggregation, including the consideration of donations made prior to October 25, 2001, which were subject to the legislation in force before the suspension of inheritance and gift taxes. It also refers to indirect gifts, such as real estate and business transfers, which were already subject to registration tax or VAT and therefore excluded from the scope of gift tax.

The "succession" aggregation involved the theoretical summation of the value of donations made during the deceased's lifetime (the donatum) with the value of the estate (the relictum) for the heirs and legatees.

Regarding succession aggregation, the Council references Supreme Court rulings (Cass. No. 24940/2016 and Cass. No. 26050/2016), which confirmed the implicit repeal of this mechanism. This is now formally reflected in Legislative Decree 139/2024 through the repeal of Article 8, paragraph 4. In this regard, Circular No. 29 of October 19, 2023, issued by the Italian Revenue Agency, is particularly significant. Aligning with the aforementioned case law, it explicitly states that, for inheritance tax purposes, the "succession" aggregation must be considered implicitly repealed, meaning it can no longer be applied either to determine tax rates or for calculating exemptions.

The "donation" aggregation, governed by Article 57 of Legislative Decree 346/1990, requires verification at the time of donation to ensure that the exemption available to the beneficiary has not already been eroded by prior donations between the same parties. If the exemption has been exceeded, the surplus becomes subject to gift tax. In line with jurisprudential (Cass. No. 727/2021 and Cass. No. 5690/2023) and administrative practice (Circular 29/2023), Legislative Decree 139/2024, while amending Article 57 of Legislative Decree 346/1990, explicitly links the aggregation mechanism to calculating the donor's exemption, excluding donations made during the five-year suspension of the tax (October 25, 2001 - November 29, 2006).

As outlined above, this complex and debated subject has undergone numerous changes over the years due to legislative developments, varying judicial trends, and sometimes delayed interpretative guidance.

While recent interventions (in case law, doctrine, administrative guidance, and legislation) have clarified some uncertainties, others, such as the treatment of indirect gifts, still await a definitive stance.

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