LA SOGGETTIVITÀ PASSIVA TRIBUTARIA DEI FONDI COMUNI D’INVESTIMENTO IMMOBILIARI AI FINI DELL’IMPOSIZIONE PATRIMONIALE ED INDIRETTA

The issue of the subjectivity of real estate investment funds for ICI/IMU remains to date a controversial topic, heralding litigation and contradictory pronouncements, as evidenced by the recent interventions of the Supreme Court. For instance, the Supreme Court denied the tax subjectivity of an insolvent investment fund, fixing the tax claim in the hands of the Sgr, which was nevertheless prevented from accessing the fund’s assets precisely because of the pending bankruptcy proceeding, thus effectively violating the principle of asset separation between the fund and the SGR. Indeed, tax jurisprudence adheres to the civil law framework whereby investment funds, considered as mere separate assets of the Sgr, are deprived of both legal and tax subjectivity (as regards indirect and capital taxes), in the same way as destined assets or trusts. However, it is necessary to reflect on this view, which is susceptible to profound contradictions, such as when several Sgr alternate in the management of the fund, or it is subject to the procedure of administrative compulsory liquidation.