JUDGMENT NO. 180

YEAR 2025

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI,
has pronounced the following

JUDGMENT

in the constitutional legitimacy review proceedings concerning Article 37 of Decree-Law of 21 March 2022, no. 21 (Urgent measures to counter the economic and humanitarian effects of the Ukrainian crisis), converted, with amendments, into Law of 20 May 2022, no. 51, as amended by Article 55 of Decree-Law of 17 May 2022, no. 50 (Urgent measures concerning national energy policies, business productivity and investment attraction, as well as social policies and the Ukrainian crisis), converted, with amendments, into Law of 15 July 2022, no. 91, and subsequently amended by Article 1, paragraph 120, letters a), b) and c), of Law of 29 December 2022, no. 197 (State budget forecast for the financial year 2023 and multi-year budget for the three-year period 2023-2025), promoted by the First Level Tax Court of Cagliari, Section 1, and by the First Level Tax Court of Rome, Section 19, with orders dated 7 October 2024 and 7 February 2025, respectively, registered under numbers 11 and 54 of the ordinary register of orders for the year 2025 and published in the Official Gazette of the Republic, first special series, numbers 7 and 14 of the year 2025.

Having regard to the filings of Saras spa and Eni Global Energy Markets spa, as well as the intervention filings by the President of the Council of Ministers;

having heard the rapporteur Judge Luca Antonini in the public hearing of 7 October 2025;

having heard the lawyers Andrea Silvestri for Saras spa, Livia Salvini and Davide De Girolamo for Eni Global Energy Markets spa, as well as the State lawyers Salvatore Faraci and Mattia Cherubini for the President of the Council of Ministers;

deliberated in the council chamber of 7 October 2025.

Facts Considered

1.‒ With order of 7 October 2024 (registered under no. 11 of the ordinary register of orders for 2025), the First Level Tax Court of Cagliari, Section 1, raised questions of constitutional legitimacy regarding Article 37, paragraph 7, of Decree-Law of 21 March 2022, no. 21 (Urgent measures to counter the economic and humanitarian effects of the Ukrainian crisis), converted, with amendments, into Law of 20 May 2022, no. 51, as amended by Article 55 of Decree-Law of 17 May 2022, no. 50 (Urgent measures concerning national energy policies, business productivity and investment attraction, as well as social policies and the Ukrainian crisis), converted, with amendments, into Law of 15 July 2022, no. 91, and subsequently amended by Article 1, paragraph 120, letters a), b) and c), of Law of 29 December 2022, no. 197 (State budget forecast for the financial year 2023 and multi-year budget for the three-year period 2023-2025), on the grounds of Articles 3, 23, and 53 of the Constitution.

2.‒ The Cagliari Tax Court notes that it was approached by a claim filed by Società anonima raffinerie sarde spa (Saras spa) against the Revenue Agency's act denying the refund of the amount of EUR 76,995,188.00 paid by the company as a special contribution pursuant to the provisions of Article 37 of Decree-Law no. 21 of 2022, as converted and subsequently amended.

It notes, in particular, that in that proceeding, Saras spa requested: primarily, the annulment of the denial act and the consequent refund of the entire amount paid, as the tax legislation imposing the special contribution allegedly violated Articles 3, 23, 41, 42, 53, and 117 of the Constitution; secondarily, the recognition of the right to deduct the amount of EUR 18,478,845.00 from the taxable base for corporate income tax (IRES), as the provision of Article 37, paragraph 7, of Decree-Law no. 21 of 2022, as converted and subsequently amended, allegedly violated Articles 3 and 53 of the Constitution.

2.1.‒ The Cagliari Tax Court acknowledges that the company, by a brief filed pursuant to Article 32 of Legislative Decree of 31 December 1992, no. 546 (Provisions on tax proceedings in implementation of the delegation to the Government contained in Article 30 of Law of 30 December 1991, no. 413), requested, in order to benefit from the effects of this Court's Judgment no. 111 of 2024, which intervened during the pendency of the initial proceedings, to declare "the illegitimacy of the denial of refund as regards the portion of the Special Contribution attributable to the 'excise duty' component".

3.‒ The referring Judge considers, firstly, that all the questions of constitutional legitimacy raised by the company primarily are manifestly unfounded in light of the considerations expressed by this Court in Judgment no. 111 of 2024 and, secondly, that it cannot accept the request made by the company in its brief, "as it is a claim not raised in the appeal," and therefore inadmissible.

It therefore focuses on the secondary question concerning Article 37, paragraph 7, of Decree-Law no. 21 of 2022, as converted and subsequently amended, according to which the special contribution "is not deductible for the purposes of income taxes and regional tax on productive activities."

4.‒ It then observes that "the partially demolishing intervention on Article 37 of Decree-Law no. 21/2022" carried out by Judgment no. 111 of 2024 would in no way affect the relevance of the aforementioned question of constitutional legitimacy, because, in the absence of the challenged provision, the provision of Article 99, paragraph 1, of Presidential Decree of 22 December 1986, no. 917 (Approval of the consolidated text of income taxes), would apply, which stipulates that "[i]ncome taxes and those for which reimbursement, even optional, is provided are not deductible. Other taxes are deductible in the fiscal year in which payment occurs."

5.‒ According to the referring Judge, moreover, it would not be possible to proceed with a constitutionally oriented interpretation, given the unequivocal literal meaning of the provision contained in Article 37, paragraph 7, of Decree-Law no. 21 of 2022, as converted and subsequently amended.

6.‒ As to the non-manifest unfoundedness, the Cagliari Tax Court holds that the challenged provision, by not allowing the deductibility of the special contribution from the IRES taxable base, would violate Articles 3, 23, and 53 of the Constitution.

6.1.‒ Firstly, it would conflict with Articles 3 and 53 of the Constitution due to a violation of the principles of taxpaying capacity and reasonableness.

The referring Judge starts from the consideration that the deductibility of costs and tax burdens from the IRES taxable base, with the exception of income taxes and those for which reimbursement applies (which would not include the special contribution), constitutes a principle derivable from Article 99, paragraph 1, of Presidential Decree no. 917 of 1986.

The provision for non-deductibility would thus harm the principle of taxpaying capacity because, since the special contribution is an inherent cost, its deductibility cannot be precluded "without compromising the coherence of the tax design, once the legislator has, in its discretion, established the criterion of net taxation for business income," as stated by this Court in Judgment no. 262 of 2020 concerning the non-deductibility of the municipal property tax (IMU) on instrumental assets from the IRES taxable base.

7.‒ The violation of the principle of taxpaying capacity would also be evident in terms of the prohibition of double taxation, as the company made payment, with reference to the same tax year, of both the special contribution and the IRES.

8.‒ The conflict with Articles 3 and 53 of the Constitution would be confirmed, according to the referring Judge, in "some principles enunciated by the aforementioned Constitutional Court Judgment no. 111/2024."

The referring Judge observes that it is stated therein that "the elements of the tax structure, in ordinary times, would not permit—even based on the most modern conception of the principle of taxpaying capacity previously mentioned [...]—to pass the test of rational connection and proportionality," and furthermore, that "only by taking into account the entirely sui generis nature of the context in which the temporary tax intervention was introduced can the instrument used by the legislator be 'exceptionally' deemed not unreasonable."

It highlights that in the same judgment the Court also specified that it must always "ensure, in assessing the balance struck by the legislator, at least the respect of an essential threshold of non-manifest unreasonableness, beyond which the tax duty itself would lose its justification in terms of solidarity, turning instead into a mere subjection to state power."

According to the referring Judge, "once it is recognized that the structural elements of the contribution in question are such as to place it beyond the minimum threshold of rational connection and proportionality and that the constitutional legitimacy of such a tax can only be recovered by considering the 'entirely sui generis nature of the context'," the non-deductibility of the special contribution from the IRES taxable base would lead to exceeding the minimum threshold of reasonableness, as "to the already precarious constitutional balance of a tax structurally contrary to the aforementioned constitutional parameters (which finds its only salvation in the exceptional nature of the moment), the further mechanism of non-deductibility for IRES purposes of the tax itself is added."

9.‒ The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney's Office.

9.1.‒ On procedural grounds, according to the State defense, the questions would be inadmissible.

9.1.1.‒ Firstly, because the referring Judge allegedly failed to provide reasoning on the possible irrelevance resulting from the potential acceptance of the partial refund claim that the company had put forward in that proceeding by means of the brief filed pursuant to Article 32 of Legislative Decree no. 546 of 1992.

The State defense observes that the referring Judge erroneously deemed this claim to be "new" and therefore inadmissible, as the company had merely modified its primary claim by reducing its scope.

Consequently, the referring Judge should have considered the claim proposed in the brief, rather than declaring it inadmissible, and conducted, in the adversarial setting between the parties, a review of the merits of the new claim, which constituted a mere amendment of the primary claim. Therefore, if it had accepted the partial refund claim, it could not have examined the claim for the refund of the higher IRES paid due to the non-deductibility regime provided for by the challenged provision and the related questions of constitutional legitimacy.

9.1.2.‒ Secondly, because the referring Judge allegedly failed to examine the aspect of the possible impact of the special contribution on the taxable base of the further "temporary solidarity contribution" introduced by Article 1, paragraphs 115 to 119, of Law no. 197 of 2022, which would burden a portion of the income generated in the same fiscal year 2022, which is the same year in which the special contribution referred to in Article 37 of Decree-Law no. 21 of 2022, as converted and subsequently amended, was due.

10.‒ On the merits, according to the State defense, the questions would be unfounded.

The reference made by the referring Judge to Judgment no. 262 of 2020 would not be relevant in the first place.

The reasoning contained therein, in fact, would not be applicable with reference to the relationship between IRES and the special contribution, since, while "the provision reviewed by the judgment under review provided for the non-deductibility, from the IRES taxable base, of an 'ordinary' and 'permanent' tax, such as IMU," in the present case, "a form of 'extraordinary' and 'one-off' levy" is at issue, which would not stably affect the structure of IRES and would not alter "its design and internal legal coherence."

The provision for non-deductibility of the special contribution would therefore find justification in the prevailing interest pursued by the legislator of "not 'sterilizing', at least in part, the expected increase in revenue from the new 'contribution' aimed at financing the necessary interventions to cope with the exceptional situation."

Furthermore, the State defense continues, the very sui generis nature of the special contribution, affirmed by the aforementioned Judgment no. 111 of 2024, would "all the more justify the non-deductibility scrutinized here."

10.1.‒ To support the constitutional legitimacy of the challenged provision, the State defense refers to recital 55 of Council Regulation (EU) 2022/1854 of 6 October 2022, on an emergency intervention to curb high energy prices, according to which Member States "should [...] provide for the deductibility or non-deductibility of the solidarity contribution."

Thus, even at the EU level, the "non-unreasonableness [...] of the choice made by the Italian tax legislator" would have been recognized.

11.‒ Saras spa was constituted in the proceedings and requested the acceptance of the constitutional legitimacy questions raised by the referring Judge, retracing the argumentative process followed by the referring Judge on the necessary deductibility of an inherent tax cost.

In particular, referring to Judgment no. 111 of 2024, it specifies that the "further 'force majeure' represented, in a context of overall precariousness of the constitutional balances at stake, by the non-deductibility of the Contribution from the IRES taxable base" would be unjustified.

12.‒ In the subsequent brief, Saras spa replied to the inadmissibility exceptions raised by the State defense in the intervention filing and also highlighted that the non-deductibility provided for by the challenged provision would be "outside the framework of 'exceptional urgency' which represented the only anchor of salvation for the [special contribution]."

Nor, the party adds, would the reference to recital 55 of Regulation no. 2022/1854/EU be relevant, as it concerns a contribution regulated in a radically different way from the one under examination, and in any case, the application of the non-deductibility regime must necessarily be compatible with the specific national legislation concerning income tax.

13.‒ With order of 7 February 2025 (registered under no. 54 of the ordinary register of orders for 2025), the First Level Tax Court of Rome, Section 19, raised questions of constitutional legitimacy regarding Article 37 of Decree-Law no. 21 of 2022, as converted and subsequently amended, on the grounds of Articles 3, 42, 53, and 117, first paragraph, of the Constitution, the latter in relation to Article 1 of the Additional Protocol to the European Convention on Human Rights.

13.1.‒ The referring Judge states that the initial proceedings concern the silence-refusal of the Revenue Agency regarding the request by Eni Global Energy Markets spa, a company engaged in "activities related to energy markets," for the refund of the amount of EUR 304,669,696.86 paid by it on 30 November 2022 as the balance of the special contribution.

14.‒ Regarding relevance, the referring Judge observes that the solution adopted by Judgment no. 111 of 2024 was "modeled" on that incidental constitutional legitimacy review, whereas in the case under examination, unlike the previous one, there would be concrete elements to deem that the special contribution would have "entirely eroded the company's income and asset wealth."

14.1.‒ The challenged provision would thus, firstly, conflict with Articles 3, 53, and 42 of the Constitution as producing confiscatory-expropriative effects against the company.

In particular, the referring Judge highlights that the fulfillment of the obligation to pay the special contribution, which amounted to a total of EUR 507,782,828.11, would have ended up eroding all the company's net equity in the last fiscal year, as shown in the last balance sheet approved on 31 December 2021. In fact, despite the "positive semi-annual result before contribution of EUR 103,331,723.36," as of 30 June 2022, the company showed a net loss of EUR 404,451,104.75, "exceeding the net equity value as of the same date," so much so that a recapitalization would have been necessary to avoid incurring the consequences of Article 2447 of the Civil Code.

Moreover, even considering income, the payment of the special contribution would have resulted in the total erosion of 2022 profits, as shown in the company's balance sheet for that same year.

15.‒ The referring Judge therefore considers the special contribution to be unreasonable, as it would have "eroded all the net equity, all the operating result, and all the pre-tax profit for 2021, as well as all the profit for 2022," raising the overall tax rate, determined by the combination of the amount paid as a special contribution and that paid as other taxes applied to the company, to the level of "142 percent."

Such significant levels of taxation would, moreover, affect the "subsistence minimum," leading to the "economic death" of the company, resulting in an unfair and disproportionate deprivation of its assets.

16.‒ Furthermore, the referring Judge highlights that there would also be a violation of the principle of equality under Article 3 of the Constitution, because the confiscatory-expropriative effect would have occurred against the appellant company in the initial proceedings, but not against other taxpayers, by "weighing more heavily on certain operators – such as Egem evidently is – for entirely 'accidental' reasons completely detached from actual wealth increases."

17.‒ In strict connection with the confiscatory-expropriative effect of the special contribution, the referring Judge also raises the issue of the violation of Article 42 of the Constitution.

It observes that "if a levy has integral expropriatory effects on the assets of the affected entity, it would no longer be a tax," because, exceeding the limits of Article 53 of the Constitution, it would have lost the nature of a tax burden and instead assumed the characteristics of a different patrimonial payment without cause, thus conflicting with Article 42 of the Constitution.

18.‒ In consideration of the unjustified limitation of the right to property, there would also be a violation of Article 117, first paragraph, of the Constitution and, indirectly, of Article 1 of the Additional Protocol to the ECHR.

It refers to the judgments of the European Court of Human Rights of 14 May 2013, N.K.M. v. Hungary, and 7 December 2023, Waldner v. France, and highlights that, while recognizing the full discretion of States in imposing fiscal measures, judicial review of the proportionality of tax measures remains firm, in order to verify their " 'reasonable basis,' such as to guarantee a fair balance between the imperatives of the general interest and those of the protection of the fundamental rights of the individual."

19.‒ Another ground for violation of Articles 3 and 53 of the Constitution is raised by the referring Judge on the grounds that the challenged provision would have retroactive effect.

The special contribution would indeed take as taxable wealth a difference calculated on the turnover of the value-added tax (VAT) relating to the period October 2021-April 2022 (compared with the previous period October 2020-April 2021) and, since it entered into force on 22 March 2022 with Decree-Law no. 21 of 2022, as converted and subsequently amended, it would burden wealth that was formed previously.

20.‒ Finally, according to the referring Judge, Article 37, paragraph 2, of Decree-Law no. 21 of 2022, as converted and subsequently amended, would further conflict with Articles 3 and 53 of the Constitution, because the calculation of the special contribution, based "on the comparison of activities carried out in the period October 2021-April 2022 with those carried out in the period October 2020-April 2021," would not allow for the fact that the company would have "substantially started operations on 1 January 2021."

In order to avoid distorting effects and restore reasonableness to the challenged provision, the comparison should therefore concern homogeneous periods, so that the first period should start from the moment the company "effectively and substantially begins to operate," correspondingly reducing the second reference period.

21.‒ Eni Global Energy Markets spa was constituted in the proceedings and requested the acceptance of the constitutional legitimacy questions raised by the Rome Tax Court.

The company observes, preliminarily, that in order to scrutinize the unreasonableness of a levy, reference should be made to the "economic reflection" it has on the taxpayer, and therefore, in order to carry out the constitutional legitimacy review of the challenged provision, it would be necessary to proceed to a "case-by-case examination, in relation to the position of the individual taxpayers affected."

Following this perspective, it would emerge that the tax would have a typically expropriatory content, since all the wealth magnitudes of the company, both income and asset, have been totally eroded.

22.‒ The company adds that the prohibition of expropriatory taxes also derives from a reading of Article 53 of the Constitution linked to the concept of the "subsistence minimum," which implies that the overall level of taxation should never compromise the means of subsistence of individuals for the satisfaction of primary existential needs.

It specifies that "a part of the doctrine considers this principle applicable not only to natural persons but also to collective entities," given the importance that "various 'social formations' have acquired over the years, which, despite the already highlighted centrality of the human person, find important recognition in Article 2 of the Constitution."

In this sense, a tax that had the effect of causing, as in the present case, the "economic death" of an entity would not comply with Article 53 of the Constitution.

23.‒ Furthermore, the unreasonableness of the challenged provision would derive from the fact that the legislator did not provide for a maximum ceiling on taxation.

The need to identify this limit would stem from the fact that this Court, with Judgment no. 111 of 2024, would have affirmed that the "presupposition that the legislator intended to subject to taxation is, upstream, arbitrary and irrational" as there would be "no correspondence between the presupposition and the taxable base" of the special contribution.

Conceived in this way, the special contribution would be "ontologically inconsistent but deemed reasonable in light of the exogenous context," and for this very reason, the need to provide for a maximum limit to taxation, not identified by the challenged provision, should be considered, in order to prevent "the risk that this inconsistency may determine expropriatory effects on taxpayers."

24.‒ With reference to the violation of Article 117, first paragraph, of the Constitution and, indirectly, of Article 1 of the Additional Protocol to the ECHR, the company highlights that the ECtHR has frequently emphasized the protection of the right to property in the tax sphere, clarifying, in particular, that the exercise of taxing power is legitimate only if it achieves a fair balance between the pursuit of the public interest and the need to protect the right to property, requiring the legislator to act in compliance with the standard of proportionality between the means employed and the objectives pursued, which would require an assessment in fact of the fact that the taxpayer is not subjected to an excessive and exorbitant sacrifice.

In the present case, this fair balance would be absent, as the company would have suffered a "radical emptying of the content of the right to property."

24.1.‒ To these considerations, the private party adds that the ECtHR has emphasized the illegitimacy of the "surprise effect" of tax measures introduced ex post, and observes that the challenged provision would produce an unjustified retroactive effect, as it would burden wealth that might have been formed before its entry into force, thus affecting the predictability of the levy, so that "businesses would have found themselves completely unprepared to pay such a substantial amount, without being able to adjust their operations to the future disbursement through appropriate financial and economic provisioning plans."

25.‒ The company, finally, also argues on the question of constitutional legitimacy of the challenged provision under the profile of violation of the principle of equality.

It highlights in this regard that the special contribution, "precisely because it lacks rationality and proportionality," would weigh more heavily on certain operators for entirely 'accidental' reasons completely detached from wealth increases, thus discriminating them compared to their competitors.

26.‒ Regarding the question of the unreasonableness of Article 37, paragraph 2, of Decree-Law no. 21 of 2022, as converted and subsequently amended, for not having taken into account the possibility of reducing the time periods to be compared, it observes that the challenged provision identifies "precisely," "without providing for any exceptions," the months that contribute to the taxable base of the special contribution.

For this reason, a distorting effect would be determined for those companies that started operations during the first reference period.

Considering that the increase in wealth derived from carrying out activities in the energy sector is subject to taxation, it should then be stated that the starting point of the first reference period, to which the second period should also be correspondingly parameterized, should coincide with that "in which the subject begins to carry out active operations for VAT purposes, as resulting from the periodic VAT settlements (LIPE)."

27.‒ The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney's Office.

27.1.‒ On procedural grounds, the State defense objected to the inadmissibility of the questions relating to the confiscatory-expropriative nature of the challenged provision due to generality and failure to assess the effects that Judgment no. 111 of 2024, which declared the unconstitutionality of the challenged provision in the part where it provides for the inclusion of excise duties paid to the State and indicated in active invoices in the taxable base of the special contribution, would have had on the initial proceedings.

It highlights that the referring Judge, in order to assess the possible confiscatory-expropriative effect of the special contribution, should have recalculated the amount due, excluding from the calculation the portion that the company paid as excise duties, with the consequence that the actual impact of the tax on the company's accounting values would be entirely undetermined.

27.2.‒ Furthermore, according to the intervener, the questions would be inadmissible because the referring Judge did not correctly recall the data relied upon to highlight the confiscatory-expropriative effect.

It notes in this regard that the referring Judge allegedly compared the global value of the special contribution paid by the company to the net equity resulting from the balance sheet of 31 December 2021, as well as to the operating profit accrued as of 30 June 2022, without however taking into account that, in reality, according to Article 37, paragraph 5, of Decree-Law no. 21 of 2022, as converted and subsequently amended, the taxpayer was required to pay only the advance payment (equal to 40 percent of the amount due, while 60 percent should have been paid by 30 November 2022) by 30 June 2022. It also highlights that the referring Judge allegedly referred only to the operating profits accrued as of 30 June 2022, without considering any further profits that might have accrued during the same year and which could have "covered" the remaining part of the amount due.

27.3.‒ A further exception of inadmissibility was raised by the State defense due to the generality of the formulation and the *petitum* of the questions relating to the exact identification of the reference period for the purpose of calculating the possible increase in the balance between active and passive VAT transactions resulting from periodic settlements.

In fact, the referring Judge allegedly failed to specify the objective criterion for identifying the moment when a company can be considered actually operational.

The State defense highlights, moreover, that the referral order would have deviated from the position taken by the Revenue Agency in practice with Circular no. 22/E of 23 June 2022, according to which, if a subject started operations during the first reference period (1 October 2020 - 30 April 2021), it would be necessary to compare homogeneous data, so that, if the activity started "for example on 1 January 2021 [...] the data resulting from the periodic VAT settlements relating to the period 1 January 2021 - 30 April 2021 must be taken as a reference term and compared with the data relating to the period 1 January 2022 - 30 April 2022."

The same circular, the State defense observes, would also have clarified that the start of activity must be understood as the moment when the subject acquires tax liability for VAT purposes, i.e., when it opens its VAT number and carries out preparatory activities aimed at the effective start of the typical activity, regardless of the actual realization of active transactions.

28.‒ On the merits, according to the State defense, the questions would be unfounded.

With reference to the question relating to the confiscatory-expropriative effect of the special contribution, it recalls this Court's Judgment no. 111 of 2024, which "excluded the possibility of assessing the constitutional legitimacy of a tax levy in light of" Article 42 of the Constitution, and observes that the economic resources of the taxpayer used for the fulfillment of a tax "constitute the means of payment and not the object of the taxation."

It therefore deems that, with respect to a compulsory patrimonial payment of a tax nature, only its reasonableness and proportionality in light of Articles 3 and 53 of the Constitution should be evaluated, aspects on which Judgment no. 111 of 2024 has already ruled.

Following this perspective, it would not be "unreasonable to deprive a subject, even to a particularly significant extent, of an economic source obtained solely due to a particular historical juncture, where the need to allocate those resources to support subjects who, from that same juncture, have been conversely disadvantaged is at stake."

The intervener adds that the non-arbitrariness of the levy, if it certainly holds true for the specific "index of taxpaying capacity" affected by a levy, would hold true "and indeed all the more so, where the levy is compared to economic magnitudes not directly affected by it," as would be the case here, where the tax levy does not take as its tax base income or assets (which the referring Judge refers to), but a different marginal economic magnitude corresponding to the increase in the balance between active and passive VAT transactions referred to in the periodic settlements.

From this point of view, comparing a tax levy to an economic value other than the one specifically taxed would mean measuring the level of impact of the former on the latter not in abstract terms, but in a measure "that varies from taxpayer to taxpayer, according to the specific characteristics of each of them," but this would imply that "[t]he same levy would therefore end up being constitutional or unconstitutional, depending on the taxpayer taken into consideration."

Nor would it be correct to consider that the unreasonableness and disproportion of the special contribution lie in the fact that the challenged provision does not provide for a "maximum ceiling" on its impact on the taxpayer's economic and asset availability.

In fact, "any operation hypothetically aimed at identifying such a 'maximum ceiling' or 'maximum rate' of impact on the taxed economic magnitude would prove entirely arbitrary," as it is up to "the legislator, from time to time, to establish the extent to which this 'economic magnitude' should be affected, in light of its characteristics, as well as considering the peculiar contingencies, including historical-social and economic ones," in which the tax is imposed.

29.‒ According to the State defense, the question relating to the violation of Article 117, first paragraph, of the Constitution and, indirectly, of Article 1 of the Additional Protocol to the ECHR would also be unfounded, as the ECtHR has always recognized a wide margin of discretion to the legislators of individual Member States, even with regard to tax treatment, although "particularly high."

30.‒ The further question challenging the retroactivity of the special contribution would also be unfounded, as a provision that affects an already arisen economic index or value would conflict with Articles 3 and 53 of the Constitution only if the same index were no longer capable of expressing an "current taxpaying capacity," i.e., a wealth or economic strength still detectable.

In the present case, the economic situation that caused the anomalous rise in energy prices and energy products was "still ongoing" at the time the challenged provision entered into force.

31.‒ Finally, according to the State defense, the last question relating to the failure to take into account, for the purposes of the possible emergence of a balance between active and passive VAT transactions, the moment of the taxpayer's actual operation would be unfounded.

It deems in this regard that, while it is true that the time periods compared must be homogeneous, on the other hand, "the 'coming into existence' of the subject affected by the levy [...] can only coincide with its formal establishment," as a different parameter, aimed at asserting the start of substantial and effective operation, "would be entirely uncertain and arbitrary."

32.‒ In the brief, the State Attorney's Office insisted on the exceptions of inadmissibility and unfoundedness of the questions raised by the intervention filing, replying to the submissions contained in the private party's filing.

In particular, as further support for the exception of inadmissibility of the question relating to the expropriatory effect of the special contribution, it highlights that the *petitum* put forward would be uncertain, as it did not specify whether it concerns the provision to the extent that it determined an expropriatory effect in the concrete case or because it "does not contain general and abstract provisions capable of preventing the occurrence of such a result."

Moreover, always with reference to the question relating to the confiscatory-expropriative effect of the special contribution, according to the State defense, Judgment no. 111 of 2024 would have stated "in clear terms" the rationality and proportionality of the special contribution with respect to its presupposition, considering the need for urgent intervention and the absence of further available data compared to those emerging from the periodic VAT settlements.

The impossibility of verifying its impact on other economic magnitudes, such as net operating profit and pre-existing net equity, which are extraneous to the tax presupposition identified by the legislator, is therefore reaffirmed.

33.‒ Eni Global Energy Markets spa also filed a brief in which it insisted on the considerations already expressed in the filing and replied to the inadmissibility exceptions and the substantive defense submissions of the State defense.

33.1.‒ In particular, regarding the exception of inadmissibility due to failure to assess the impact of the partial declaration of constitutional illegitimacy referred to in Judgment no. 111 of 2024, it highlights that "Egem, as an energy trader, is never subject to excise duties, with the consequence that, obviously, it cannot even hypothetically be imagined that these taxes 'impact' the taxable base of the Contribution paid by it."

It is for this reason, in fact, that the company "did not request (nor could it have requested) the refund of the Contribution due to the incidence of excise duties on its taxable base," so that, "in the absence of the refund request, it is evident that the Judge could never have ruled, without incurring *extra petita*."

33.2.‒ Specifically concerning the question relating to the confiscatory-expropriative effects of the special contribution, the company, starting from the reservations that Judgment no. 111 of 2024 would have expressed regarding the coherence of the contribution, highlights the need to consider the protection under Article 42 of the Constitution.

In particular, it specifies that when "Law no. 197/2022, Article 1, paragraphs 115 et seq., introduced a solidarity contribution charged to energy companies," it provided "a maximum threshold for the amount due parameterized precisely on net equity and, in particular, on 25% of it," and furthermore, that "Decree-Law no. 104/2023 [which] introduced an extraordinary tax on extra-profits of financial institutions" also established a maximum ceiling, while only "the Contribution under scrutiny here does not provide the same protection mechanism for taxpayers against expropriatory effects."

Regarding the question of the violation of Articles 3 and 53 of the Constitution related to the correct calculation of the time periods to be considered, the private party insists on the need to take as a reference point the "moment in which the subject begins to carry out active operations for VAT purposes, as resulting from the periodic VAT settlements (LIPE)."

Considered in Law

1.‒ With order of 7 October 2024 (reg. ord. no. 11 of 2025), the Cagliari Tax Court raised questions of constitutional legitimacy concerning Article 37, paragraph 7, of Decree-Law no. 21 of 2022, as converted and subsequently amended, according to which the special contribution is not deductible from IRES, on the grounds of Articles 3, 23, and 53 of the Constitution.

1.1.‒ Regarding the relevance of the questions, the referring Judge highlights that, following this Court's Judgment no. 111 of 2024, which found the questions of constitutional legitimacy unfounded on which Saras spa had primarily requested the refund of the entire special contribution paid, only the further subordinate claim remained for its consideration, concerning the refund of the higher IRES paid due to the provision for non-deductibility of the special contribution.

However, the challenged provision itself, which provides for the non-deductibility of the special contribution from IRES, would obstruct the acceptance of this claim, because, in its absence, the provision of Article 99, paragraph 1, of Presidential Decree no. 917 of 1986 would apply, which generally recognizes the deductibility of taxes, except for income taxes and those for which reimbursement is provided, even optional.

2.‒ As to the non-manifest unfoundedness, according to the referring Judge, the challenged provision would, firstly, conflict with Articles 3 and 53 of the Constitution due to a violation of the principles of taxpaying capacity and reasonableness.

Starting from the principles affirmed by this Court in Judgment no. 262 of 2020 regarding the non-deductibility of IMU on instrumental assets from IRES, the referring Judge holds that, since the special contribution is an inherent cost of the business activity, the provision for non-deductibility from IRES would lead to the rupture of the relationship of continuity and coherence that must exist between the taxable base and the related presupposition, given that Article 75 of Presidential Decree no. 917 of 1986 provides that the tax applies to the net aggregate income.

The conflict with Articles 3 and 53 of the Constitution would also be confirmed by the principles enunciated by this Court in Judgment no. 111 of 2024, which had already noted the "precarious constitutional balance" of the special contribution, which would therefore also be reflected in the mechanism of non-deductibility of the tax itself for IRES purposes.

2.1.‒ The violation of Article 53 of the Constitution would also be evident under the profile of the prohibition of double taxation, as the company made payment, with reference to the same tax year, of both the special contribution and the IRES.

3.‒ With order of 7 February 2025 (reg. ord. no. 54 of 2025), the Rome Tax Court raised questions of constitutional legitimacy concerning Article 37 of Decree-Law no. 21 of 2022, as converted and subsequently amended, on the grounds of Articles 3, 42, 53, and 117, first paragraph, of the Constitution, the latter in relation to Article 1 of the Additional Protocol to the European Convention on Human Rights.

3.1.‒ For the purpose of the relevance of the questions, the referring Judge acknowledges Judgment no. 111 of 2024, but specifies that, in the case under examination, unlike the previous one, there would be concrete elements to justify new questions of constitutional legitimacy on the special contribution which the company requests to be refunded, as it would have "entirely eroded the company's income and asset wealth."

3.2.‒ As to the non-manifest unfoundedness, firstly, the referring Judge specifies that the payment of the special contribution would have "eroded all the net equity, all the operating result, and all the pre-tax profit for 2021, as well as all the profit for 2022," raising the overall tax rate, determined by the combination of the amount paid as a special contribution and that paid as other taxes applied to the company, to the unsustainable level of 142 percent.

Such significant levels of taxation would affect the "subsistence minimum," leading to the "economic death" of the company, with an unfair and disproportionate deprivation of its assets.

This confiscatory-expropriative effect on asset and income wealth—which for entirely 'accidental' reasons, detached from actual wealth increases, would have occurred only against the appellant company in the initial proceedings and not against other taxpayers—would lead, according to the referring Judge, to the violation of Articles 3, 42, and 53 of the Constitution.

3.3.‒ In consideration of the unjustified compression of the right to property, there would also be a violation of Article 117, first paragraph, of the Constitution and, indirectly, of Article 1 of the Additional Protocol to the ECHR.

4.‒ Furthermore, the referring Judge holds that the challenged provision violates Articles 3 and 53 of the Constitution because it would have a retroactive effect. The special contribution would indeed take as taxable wealth a difference calculated on the VAT turnover relating to the period October 2021-April 2022 (compared with the previous period October 2020-April 2021) and, since it entered into force on 22 March 2022, with Decree-Law no. 21 of 2022, as converted and subsequently amended, it would burden wealth that was formed previously.

5.‒ Finally, according to the referring Judge, Article 37, paragraph 2, of Decree-Law no. 21 of 2022, as converted and subsequently amended, would further conflict with Articles 3 and 53 of the Constitution, because the calculation of the special contribution, based "on the comparison of activities carried out in the period October 2021-April 2022 with those carried out in the period October 2020-April 2021," would not allow for the fact that the company would have "substantially started operations on 1 January 2021."

In order to avoid distorting effects and restore reasonableness to the challenged provision, the comparison should instead concern homogeneous periods, so that the first period should start from the moment the company "effectively and substantially begins to operate," correspondingly reducing the second reference period.

6.‒ Preliminarily, since the referral orders concern the same provision and raise largely overlapping questions, the joinder of the proceedings for joint examination is ordered.

7.‒ In the proceedings referred to in the order of the Cagliari Tax Court, the State defense, firstly, objected to the inadmissibility of the questions. In fact, the referring Judge allegedly erroneously held that the partial refund request made by the party with a brief, following the declaration of partial constitutional illegitimacy of the challenged provision in Judgment no. 111 of 2024, which intervened during the proceedings, was new – whereas it constituted a mere amendment of the primary claim – and therefore inadmissible.

7.1.‒ The objection is unfounded.

The review of the referring Judge's assessment of the relevance of the question "is reserved to the referring Judge and, with respect to it, this Court carries out a merely 'external' review, limited to ascertaining the existence of a non-implausible, not manifestly erroneous or contradictory reasoning" (Judgment no. 25 of 2025; the same, judgments no. 192 of 2022 and no. 32 of 2021).

In the present case, the referring Judge's reasoning appears to meet this standard, also because the recalculation of the *quantum* requested by the company in the initial proceedings would not have prevented the tax judge from ruling on the subordinate claim as well, thus leaving the question concerning the constitutional legitimacy of the mechanism for non-deductibility of the special contribution unchanged in terms of relevance and non-manifest unfoundedness.

7.2.‒ The further objection raised by the State defense, alleging that the referring Judge, in assessing relevance, should have evaluated the possible impact of this contribution on the taxable base provided for by the subsequent one introduced by Article 1, paragraphs 115 to 119, of Law no. 197 of 2022, is also unfounded.

In fact, for the assessment of relevance, the provision which the referring Judge must apply is relevant, namely Article 37, paragraph 7, of Decree-Law no. 21 of 2022, as converted and subsequently amended, without being required to consider other legal provisions that do not have an impact for the decision.

8.‒ In the proceedings referred to in the order of the Rome Tax Court, the State defense, with reference to the questions relating to the confiscatory-expropriative effect of the special contribution, objected, firstly, to their inadmissibility because the referring Judge allegedly failed to consider the effects of Judgment no. 111 of 2024, which excluded excise duties from the calculation of the taxable base.

According to the State defense, the referring Judge should have taken into account that, following the aforementioned judgment, the amount of the special contribution should have been reduced, with evident repercussions on the wealth actually affected.

8.1.‒ The objection is unfounded.

The referral order is adequately reasoned on non-manifest unfoundedness, also because it is evident from it that the company requested, with the initial filing, only the refund of the entire special contribution paid by it. The same request was reiterated following Judgment no. 111 of 2024, without any party in the proceedings having suggested that this ruling could have had an impact and thus lead to the recognition of the right to a partial refund.

In the absence of a specific request by the company in the initial proceedings, in compliance with the principle of disposition that also governs tax proceedings, the first-level Judge therefore did not examine, because it could not, the possible existence of that right to partial refund.

Supporting this consideration is what the private party's defense states in the brief, where it is emphasized that "Egem, as an energy trader, is never subject to excise duties, with the consequence that, obviously, it cannot even hypothetically be imagined that these taxes 'impact' the taxable base of the Contribution paid by it."

9.‒ Still with reference to the questions relating to the confiscatory-expropriative effect of the special contribution, the State defense further objected to their inadmissibility due to generality, as the referring Judge allegedly failed to provide concrete elements to reach its conclusion.

9.1.‒ The objection is unfounded.

The reasoning process of the referring Judge is not generic or indeterminate, as the factual elements on which it based its conviction regarding the radical impact of the special contribution on the assets and income attributable to the company have been specifically indicated.

10.‒ A further exception of inadmissibility was raised by the State defense because the referral order allegedly failed to clarify on what objective criteria the moment of commencement of operations of the company required to pay the contribution should be defined.

10.1.‒ The exception is unfounded.

According to the Rome Tax Court, the special contribution should tax "actually operating business entities (where extra-profits are presumed to reside) and not newly established or non-operational companies, which only carry out preparatory activities."

Implicit in this reasoning is that the initial moment to be considered should be that in which the company begins to issue active invoices.

This same line is followed, moreover, by the company in its filing and subsequently in the brief.

Contrary to what is suggested by the State defense, the referring Judge has therefore identified the objective criterion based on which to establish the exact initial moment to anchor the calculation of the first time period.

11.– The questions raised by the Cagliari Tax Court are unfounded.

It is true that this Court, with reference to IRES, has delineated the principle that, if the legislator, in its discretion, has "identified its presupposition in the possession of the 'net aggregate income,' choosing to favor the option of analytical determination of income among different options, it cannot, without breaking a bond of coherence, render a clearly and entirely inherent tax cost non-deductible" (Judgment no. 262 of 2020).

It is equally indubitable that the "contribution as an extraordinary solidarity levy" constitutes an inherent tax cost and is not classifiable among non-deductible taxes, pursuant to Article 99, paragraph 1, of the TUIR, as it burdens income or because reimbursement is provided for it.

However, the same Judgment no. 262 of 2020 also clarified that said principle "does not absolutely exclude that the legislator may provide for limits to the deductibility of costs, even if actually incurred within the scope of a business activity," as "derogations responding to the need to protect the fiscal interest" are possible.

From this perspective, it is necessary to recall once again that the aforementioned contribution "was enacted in the context of an exceptional situation, characterized by the manifestation of the serious international crisis, caused by the Russian invasion of Ukraine, as a consequence of which Russia progressively reduced natural gas supplies to the European Union." It is in this context that electricity-producing companies and the fossil fuel sector benefited "from the extreme price increases due to the current market situation, with profits going beyond the results of normal commercial activities." Therefore, a serious crisis situation occurred, and to cope with the "unsustainable effects on consumers and businesses" (Judgment no. 111 of 2024), given the exceptional nature of the events, it was necessary to adopt solidarity measures of particular significance.

The contribution for the year 2022, under Article 37, paragraph 1, of Decree-Law no. 21 of 2022, as converted and subsequently amended, was, in fact, a one-off levy on the exchange of energy products by those operators who, essentially, benefited from an anti-cyclical trend, and was introduced to finance urgent solidarity interventions, aimed at "containing the effects of the increase in prices and tariffs in the energy sector for businesses and consumers" (Judgment no. 111 of 2024).

In these terms, the extraordinary levy exclusively concerned a taxpaying capacity traceable to "a 'speculative' increase in the selling prices of energy products" – linked to factors entirely exogenous, independent of ordinary economic and business choices – and which, as such, indicated "a greater economic strength of companies operating in that specific sector" (still Judgment no. 111 of 2024).

Given this particular structure and purpose of the extraordinary solidarity contribution, the failure to provide for its deductibility, on the one hand, appears not inconsistent with its nature and, on the other hand, represents a non-unreasonable or disproportionate derogation from the principle of deductibility of inherent tax costs from IRES, finding justification in the fiscal interest linked to the public finance needs determined by the extraordinary events described.

Moreover, it must also be considered that the non-deductibility of IMU on instrumental real estate from IRES determined "the undue penalization [...] of those businesses that have chosen (a choice certainly not blameworthy, as it is functional to the solidity of the company) to invest profits in the purchase of the ownership of instrumental real estate compared to those that carry out their activity using rented properties: only the latter, in fact, can deduct all costs (the related rents), not being subject, as the former are, to IMU (non-deductible)" (Judgment no. 262 of 2020).

It is also due to this distortion that this Court, moreover, has specified – and cannot fail to reiterate – that "the legislator is required to respond transparently to the mere need for revenue, in particular, by increasing the rate of the main tax, not through inconsistent maneuvers on deductibility, which result in discriminatory, hidden, and significant increases in the taxable base to the detriment of only some taxpayers" (still Judgment no. 262 of 2020).

In the present case, however, no significant distorting effect has occurred due to the failure to provide for the deductibility of the special contribution from IRES: if the legislator, in view of the overall revenue requirement for the two-year period, had increased the rate of the contribution and then provided for its deductibility from IRES in the following year, the effect would have been substantially analogous, without any improvement in the situation of the taxpayers (some or all) of the contribution.

11.1.– The question relating to the violation of the prohibition of double taxation is likewise unfounded, as it is invoked in an irrelevant manner: this Court has already specified that the failure to recognize the deductibility of a tax from IRES does not give "rise to a phenomenon of legal double taxation" (Judgment no. 171 of 2024 and no. 262 of 2020) when the presuppositions of the two taxes are different.

12.– The first question raised by the Rome Tax Court with reference to Articles 3, 42, and 53 of the Constitution, due to the confiscatory nature of the extraordinary solidarity contribution, is unfounded.

With reference to Article 42 of the Constitution, this Court has already clarified, regarding a similar challenge to the same special contribution, that in "our constitutional system [...] the provision in Article 53 of the Constitution of an explicit principle of taxpaying capacity to which to relate the legitimacy of tax interventions (unlike other systems such as the German one where the Grundgesetz does not expressly contemplate this principle) precludes the possibility of invoking, in a conceptually forced manner, the area of application of the constitutional guarantee of the right to property" (Judgment no. 111 of 2024).

It must, however, be specified that the new question raised by the referring Judge, unlike those decided in the aforementioned Judgment, is based on the assumption that the special contribution would not have determined the erosion of only a significant part of the assets, but rather of "all the net equity, [all] the operating result, and [all] the pre-tax profit for 2021, as well as [all] the profit for 2022."

Even this specific perspective, which evokes the possibility of abnormal effects in terms of impact on the assets and income of a company, does not, however, change the terms of the question, because this Court's review, with reference to the national parameters, is in any case limited to verifying, under Articles 3 and 53 of the Constitution, the non-arbitrariness of the index of taxpaying capacity identified by the legislator, as well as the reasonableness and proportionality of the taxation, without the protection of property under Article 42 of the Constitution being relevant.

Moreover, it must also be specified that assets and income, the entities whose confiscatory effect the referring Judge denounces, are extraneous to the presupposition of the extraordinary solidarity contribution which, as the State defense notes, pertains to a different economic magnitude, corresponding to the increase in the balance between active and passive VAT transactions referred to in the periodic settlements.

12.1.– Having clarified this, this Court is nevertheless not insensitive to the presentation by the referring Judge, who highlights a situation that tends to appear extreme.

It should be emphasized that the occurrence of such effects from extraordinary taxes, additional to ordinary ones, as noted by the defense of Eni Global Energy Markets spa, is normally – and reasonably – avoided by the legislator by establishing a maximum ceiling on taxation, as also occurred for the subsequent temporary solidarity contribution criticized here, provided for by Article 1, paragraph 115, of Law no. 197 of 2022, in relation to which "a maximum threshold for the [amount due] parameterized precisely on net equity and, in particular, on 25% of it" was established (paragraph 116).

However, this maximum threshold was not established with reference to the contribution under scrutiny here, which, as this Court has specified, presents critical structural characteristics, which "in ordinary times, would not permit—even based on the most modern conception of the principle of taxpaying capacity previously mentioned (point 7.1.2.)—to pass the test of rational connection and proportionality" (Judgment no. 111 of 2024).

The legislator, in fact, limited himself to providing for an absolute threshold (EUR 5 million) and a percentage threshold (10 percent) below which the tax does not apply.

Even in relation to this gap, however, those "extraordinary circumstances that qualify the regulatory intervention as entirely sui generis" (Judgment no. 111 of 2024) become relevant, in the face of which particular revenue and solidarity needs have manifested themselves.

This consideration—which implies that "in ordinary times" (Judgment no. 111 of 2024) an effect such as the one denounced by the referring Judge should be considered an indicator of the arbitrariness of the tax—is also decisive with regard to the failure to set a maximum ceiling on the levy, probably due to the difficulty of calibrating its consequences in terms of revenue, and which, moreover, could only have been defined by the legislator given the peculiar contingencies and needs in which the tax, with its specific characteristics, was conceived.

In conclusion, in relation to the profiles of constitutional legitimacy raised by the referring Judge with reference to Articles 3 and 53 of the Constitution, even with respect to the denounced effect of "accidental" discrimination, this Court can only reiterate that "[i]t is only by taking into account the entirely sui generis nature of the context in which the temporary tax intervention was introduced that the instrument used by the legislator can therefore be exceptionally deemed not unreasonable" (Judgment no. 111 of 2024).

12.1.1.– The reference by the referring Judge to the subsistence minimum is not pertinent, as this is a magnitude conceptually not attributable to companies, and which, in any case, in the constituent assembly debates concerning the principle of taxpaying capacity, was invoked (particularly by the Honorable Scoca) to exclude that taxation could deprive the person of the minimum necessary for personal and family existence, but without reference to collective entities.

12.2.– The question raised on the same presupposition of the total erosion of assets and income in the concrete case, with reference to Article 117, first paragraph, of the Constitution and, indirectly, to Article 1 of the Additional Protocol to the ECHR in relation to the protection of the autonomous notion of property, is also unfounded.

In this regard, it must first be reiterated that "when it comes to defining and implementing policies on tax matters, the ECtHR usually grants a wide margin of appreciation to States: national authorities are in fact considered 'generally in a better position than the international judge' to decide what falls within the general interest (ex plurimis, European Court of Human Rights, Judgment of 24 June 2014, Azienda Agricola Silverfunghi sas et al. v. Italy; a principle reaffirmed also in ECtHR, Judgment of 7 December 2023, Waldner v. France)" (Judgment no. 111 of 2024).

It must also be specified that, although the situation presented by the referring Judge tends, in the concrete case, to assume an extreme character, this does not occur as a result of rates so high as to compromise personal situations, as in the cases considered by the ECtHR, Judgment of 14 May 2013, N.K.M. v. Hungary (as well as in the analogous case, ECtHR, Judgment of 2 July 2013, R.Sz. v. Hungary), but due to particular business circumstances on which the singular tax mechanism of the solidarity contribution has grafted; this, however, was not devoid of justification as it was introduced, as seen, to deal with an extraordinary situation that did not allow, given the need for urgent intervention, to refer to the most suitable parameter of income, as clarified by Judgment no. 111 of 2024.

Finally, the Judgment of the ECtHR of 7 December 2023, Waldner v. France, cited by the referring Judge, appears irrelevant, as it concerned a completely different case, in which the lack of proportionality of a 25 percent tax increase charged to subjects who do not adhere to an authorized management body (OGA) for income tax purposes was at issue.

12.3. – The question on the conflict with Articles 3 and 53 of the Constitution, which, according to the referring Judge, would result from the retroactive nature of the taxation, is also unfounded.

This Court has repeatedly affirmed that "a retroactive tax law does not per se entail a violation of the principle of taxpaying capacity; rather, it is necessary to verify, from time to time, whether the law itself, by taking as a presupposition of the payment a past fact or situation, has broken the relationship that must exist between taxation and the capacity itself, thus violating the aforementioned constitutional precept" (ex plurimis, Judgment no. 315 of 1994).

In the present case, the manifestation of wealth taken into consideration by the legislator is still that accrued in the year 2022, the year the challenged provision entered into force and the contribution was paid, although it was calculated by taking into account, even retrospectively, the differential between the VAT declaration data of the first reference period (October 2020-April 2021) compared to those of the second period (October 2021-April 2022).

The reference, therefore, to past facts constituted only the instrument to realize the tax mechanism underlying the special contribution, without the character of contemporaneity of the index of taxpaying capacity considered by the legislator being deemed to have ceased for this reason alone.

12.4. – The question regarding Article 37, paragraph 2, of Decree-Law no. 21 of 2022, as converted and subsequently amended, for lack of homogeneity of the time periods compared for the purpose of calculating the special contribution, with consequent violation of Articles 3 and 53 of the Constitution, is unfounded in the following terms.

The referring Judge complains that the company would have "substantially started operations on 1 January 2021," so that, in order to avoid distorting effects and restore reasonableness to the challenged provision, it would be necessary, on the one hand, to consider only the moment when the company "effectively and substantially begins to operate," implicitly identified as that in which it begins to issue active VAT invoices, and, on the other hand, correspondingly reduce the second reference time period.

It is undeniable, with reference to the latter aspect, that only by comparing homogeneous time periods is it possible to measure the possible increase in taxpaying capacity, so that the contraction of the first time period must also result in that of the second period, as moreover confirmed in the practice of the Revenue Agency (Circular no. 22/E of 2022).

As for the identification of the *dies a quo* of the first time period to be compared with the subsequent one, the referring Judge reaches the conclusion, supported by the private party in its filing, that the moment when the taxpayer began to issue active VAT invoices should be taken into consideration, i.e., when the activity of supplying energy products began.

This interpretation cannot be followed because, contrary to the tenour of the challenged provision—which requires taking into account "the balance between active operations and passive operations" carried out in the first period and comparing it with the balance relating to the subsequent time period—it would subtract the VAT invoices from the calculation of the balance relating to the first period.

The possibility that the taxpayer carries out only passive operations during the first time period under comparison and that these are higher than the amounts relating to the active operations of the same period was, moreover, already evaluated by the legislator, who provided that "[i]n case of a negative balance for the period from 1 October 2020 to 30 April 2021, for the purpose of calculating the taxable base for that period, a reference value equal to zero is assumed."

For the purpose of determining the entry moment into the VAT system, it is therefore necessary to value the carrying out of passive operations, according to an approach that finds support in the case law of the Court of Justice and the Court of Cassation.

The Court of Justice (Judgment of 2 June 2016, case C-263/15, Lajvér Meliorációs Nonprofit Kft) has, in fact, specified that "a person who has the intention, confirmed by objective elements, to start an economic activity autonomously [...] and makes the first investment expenditures for this purpose must be considered a taxable person (see, by analogy, judgments 21 March 2000, Gabalfrisa et al., from C-110/98 to C-147/98, EU:C:2000:145, point 47, as well as 8 June 2000, Breitsohl, C-400/98, EU:C:2000:304, point 34)" as a taxable person.

It then highlighted (Judgment of 6 October 2022, case C-293/21, UAB "Vittamed technologijos”; Judgment of 28 February 2018, case C-672/16, Imofloresmira – Investimentos Imobiliários SA) that "it is the purchase of goods or services by a taxable person acting as such that determines the application of the VAT system and, therefore, the deduction system. The use, actual or intended, of the goods or services only determines the extent of the initial deduction to which the taxable person is entitled under Article 168 of the VAT Directive and the extent of any adjustments during subsequent periods, but does not affect the birth of the right to deduction (see, in this sense, Judgment of 11 July 1991, Lennartz, C-97/90, EU:C:1991:315, point 15)."

The case law of the highest court has ruled in the same direction (Court of Cassation, Fifth Civil Section, order of 17 March 2021, no. 7440), reiterating that "[i]t is, in fact, the purchase of goods or services by a taxable person acting as such that determines the application of the VAT system."

A constitutionally oriented interpretation of Article 37, paragraph 2, of Decree-Law no. 21 of 2022, as converted and subsequently amended, therefore requires that, for the purpose of calculating the contribution, the first time period, in the case of newly established companies, starts from the carrying out of passive operations aimed at the business activity and that, correspondingly, the second time period is also homogenously restricted in time.

for these reasons

THE CONSTITUTIONAL COURT

having joined the proceedings,

1) declares unfounded the questions of constitutional legitimacy of Article 37, paragraph 7, of Decree-Law of 21 March 2022, no. 21 (Urgent measures to counter the economic and humanitarian effects of the Ukrainian crisis), converted, with amendments, into Law of 20 May 2022, no. 51, as amended by Article 55 of Decree-Law of 17 May 2022, no. 50 (Urgent measures concerning national energy policies, business productivity and investment attraction, as well as social policies and the Ukrainian crisis), converted, with amendments, into Law of 15 July 2022, no. 91, and subsequently amended by Article 1, paragraph 120, letters a), b) and c), of Law of 29 December 2022, no. 197 (State budget forecast for the financial year 2023 and multi-year budget for the three-year period 2023-2025), raised, with reference to Articles 3, 23, and 53 of the Constitution, by the First Level Tax Court of Cagliari, Section 1, with the order indicated in the preamble;

2) declares unfounded the questions of constitutional legitimacy of Article 37 of Decree-Law no. 21 of 2022, as converted and subsequently amended, raised, with reference to Articles 3, 42, 53, and 117, first paragraph, of the Constitution, the latter in relation to Article 1 of the Additional Protocol to the European Convention on Human Rights, by the First Level Tax Court of Rome, Section 19, with the order indicated in the preamble;

3) declares unfounded, to the extent indicated in the grounds, the questions of constitutional legitimacy of Article 37, paragraph 2, of Decree-Law no. 21 of 2022, as converted and subsequently amended, raised, with reference to Articles 3 and 53 of the Constitution, by the First Level Tax Court of Rome, Section 19, with the order indicated in the preamble.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 7 October 2025.

Signed:

Giovanni AMOROSO, President

Luca ANTONINI, Rapporteur

Roberto MILANA, Director of the Registry

Filed with the Registry on 2 December 2025