To determine the tax base, tax rate and exemption, does not recognize the kinship between the deceased and heir
Should the inheritance called to take over representation for the purpose of determining the taxable amount of inheritance and the percentage applicable, there is no reference to the relationship between the deceased and the principal, but that between the first and the representative.
This is, in short, as stated in Resolution No. 8 / E of 12 February, in response to questions concerning the tax treatment should be reserved for the purposes of inheritance, called the devolutions attributed to inheritance (ex grandchildren phratry of the deceased) that happen to representation on the basis of Article 467 and following of the Civil Code.
Legal framework document
In practice it is invoked, first, the legal framework relating to inheritance tax provided for in Article 2, paragraph 48 of Decree Law 262/2006. It reiterated what was already stated by Circular 3 / 2008, namely that the inheritance tax is applicable to assignments for individuals and limited to heirs and legatees of the share or value of the assets allocated to them, exceeding the deductible may be entitled under the marriage or relationship to the existence and degree of kinship with the deceased lag.
In particular, the reference standard established three different levels of taxation on the value of the share or property accruing to each beneficiary, which differ depending on the degree of consanguinity or affinity lag between the beneficiary and predecessor. Substantial changes were then introduced by the provision in question the system of exemptions that works for the devolution of the employee's spouse and relatives in a straight line (excess of 1 million euro), the brothers and sisters (excess of 100 thousand €) and disabled beneficiaries regardless of family relationship with the predecessor (excess of 1.5 million euro).
In matters of succession to the representation we refer also to the discipline codicistica. With the institution of representation (Article 467), the descendants (representatives) took over the place and degree of their ancestors (represented) called inheritance (for example, children or siblings of the deceased) and, accordingly, when the heir of the deceased is a son or a brother and they do not want (to surrender) or not (because pre-dead) to accept the inheritance, the right to make the same moves to the descendants of that son or the brother. The following article 468 cc establish which subjects to take over representation.
solution to the question
dell'inapplicabilità In view of the civil law, which applies only if the tax system itself does not govern the matter, the solution of the question, the Agency considers to be found in the discipline of inheritance tax because the tax treatment is influenced by the natural relationship (family or marriage) between the deceased and the beneficial owner, regardless of the title of the call inheritance.
assumption, in fact, where the called legacy to take over representation, for determining the tax base and tax rate applicable, must refer to the relationship between the testator and the representative.
Therefore, the representative may be granted relief according to its natural relations of kinship with the deceased.
the above, if the inheritance is called grandchildren ex phratry of the deceased to take over representation, the same - under article 2, paragraph 48, DL 262/2006 - can not be accorded any relief.
These conclusions are consistent with the assertions of the Central Fiscal Commission in its decision 3418/1990, and thereafter by the Supreme Court ruling in 6955/1994.
SOURCE: Tax Today
