Donation and debts – What are the risks?


My father wants to make a donation of the house with the right of usufruct because he has 13 thousand euros of debts with the collection agency. My husband and I will be completing the first house next year. Can this donation affect any incentives / mortgage? As for the fees should I pay Imu, Tarsu etc? Would the taxes be payable to me?


Before addressing the taxes and tax benefits that may no longer be usable by the owner of the property, it would be appropriate, we believe, that his father consulted a notary: first of all, the usufruct is seizure by Agenzia Entrate Riscossione (if anything, his father he should reserve for himself a right of residence for the property donated and not the usufruct), but also the donation could prove useless.

As is known, in fact, with the entry into force of the law 83/15, the attachment has become easier for the creditor, who can proceed even in the presence of donations, if he can write down the deed of attachment within a year from the transcription of the deed of donation.

Once the condition just stated has been met, the creditor who sees his reasons jeopardized by an act of assignment of assets put in place by the debtor, such as a donation, will be able to seize the good donated by the debtor without first having to obtain a sentence from the Court revoke the deed of gift (the so-called revocation of the deeds of the debtor). Otherwise, within five years from the completion of the deed of gift of the asset, the creditor will be able to refer the judge to request, and obtain, the revocation of the act device pursuant to Article 2901 of the Civil Code.

Once the property is donated, the donor becomes owner of the property and as such subject to all the tax obligations: some taxes will have to be paid, eventually, by the usufructuary or the holder the right of residence, but the owner of the property will be responsible in solid with respect to the omission or insufficient payment of the same taxes.

With regard to tax benefits, remember that they are not due when you buy a house located in the same town where you are already owner (exclusive or in communion with the spouse, property rights, usufruct, use and residence) of another property purchased (even without benefiting from the first house benefits).

In order to benefit from the facilities, it will be necessary to sell the old house before buying the new one, unless the property is unsuitable to meet the housing needs of the family (Cassazione ordinanza 21289/2014).



The debt is 13 thousand euros: so the house, to be mine, must pass 5 years from the act of donation. I do not think it will come to 20 thousand for the mortgage. Also because, from now, it will pay taxes. Otherwise what can the collection agency do, apart from the mortgage? Can not sell it right? Can you attack my father’s pension?

The house can not be expropriated if the debtor lives there: the debtor’s pension can be forfeited to the extent of the fifth exceeding the vital minimum.



My father should continue to live in the house he will give me. What I want to know is: if the debt with the collection agency does not exceed 20 thousand can not put the mortgage? So if you give it to me they will not do any action in the next 5 years right? After 5 years will I be safe? I do not know if the donation is convenient. Meanwhile, we await fiscal peace

If his debtor father is no longer the owner of the property, the house can no longer be expropriated, or mortgaged, for the debts of his father (but only, possibly, for the debts of the new owner).

If your father gives the house and five years pass from the date of the donation, the Inland Revenue can no longer ask the judge to make the donation ineffective.

In any case, even in such a hypothesis (inefficacy of the donation), the Inland Revenue Recovery Office could not expropriate the property (if the debtor resides there and does not own other properties) nor even mortgage it if the debt remains below 20 thousand euros. But as soon as the debt exceeds 20 thousand euros, the house could, however, be mortgaged.

And finally, with the donation it is avoided that the called to the inheritance are forced, in succession, to renounce the property not to take on the debts of the deceased or to accept the inheritance and pay the debts of the deceased ( Agenzia Entrate Riscossione could seize current accounts and salaries of the heirs)



The crux is: to put a mortgage there must be a debt of over 20,000 euros. If the debt to the collection agency is much less, they can not revoke the donation of the house?

The impossibility of registering the tax collector on the property owned by the debtor, when the debt is less than 20 thousand euros, does not prevent the creditor from being able to request, and obtain from the judge, the revocation of the device act free of charge (the donation ).

It would be a judicial action that, although it does not have a restitutory effect, in the sense that the asset would remain in the owner’s property, however, would leave it to the Tax Revenue Agency, the possibility of registering a mortgage on the good if the debt of the donor reached or exceeded the threshold of 20 thousand euros.

Surely, to be clearer, the acceptance of the request for revocation of the donation would not result in the return of the property in the assets of the donor, with the consequence that the called, to inherit the asset left by the debtor once deceased, would be forced to take over the debts of the de cuius also.

In short, in the event that the Agenzia Entrate Riscossione decides to proceed with the revocation of the deed of gift within five years granted by the registration in the public real estate registers and where the application for revocation was accepted, the concessionaire of the collection (and, of course, only the collecting agent in whose exclusive interest the deed of gift would be declared ineffective) would retain the possibility to start on the asset, now owned by the donor, all applicable enforcement and / or precautionary actions (in this case the mortgage) as if the well it remained in the debtor’s assets.

The consequence is that, in the case of donation and acceptance of the request for revocation, the donor would be forced not to exceed or exceed the threshold of his debt to twenty thousand euros if he wished to prevent the registration of the mortgage on the good of the donor.



But since in these years they have not done any action, except for a stop years ago for a car that no longer has, difficult to make the revocation of the donation. In practice do they not attack the pension first? The house is joint, so two pensions (about 1000 euros and the minimum of my mother) to attack? The folders are almost all prescribed. Maybe that’s why they did nothing or why it was Equitalia before. Beyond the donation, is there anything more effective?

Actually, in the situation described, it seems difficult to think that the Revenue Agency can move to ask for the revocation of the donation when at most, to enforce the claimed credit, would have exclusively the registration of mortgage tax, when and if the debtor aggravates the its position reaching the debt threshold of 20 thousand euros.

Moreover, the attachment of the two solidarity bearers is also problematic. The minimum is immovable, the other could be seized at most for 70 euros per month (taking into account the impervability of the vital minimum of about 650 euros).

This explains why, over time, there have been no particularly incisive executive actions.


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