Are amateur sports clubs commercial entities or non-commercial entities?

The title of this paper consists of a question that apparently might seem purely academic. In reality, the classification of amateur sports clubs (hereinafter SSD) among commercial or non-commercial entities has been the subject of much attention both in the past and especially in recent months. The reason for the recent interest is essentially linked to the application of the subsidy regulations put in place in order to reduce the negative effects of closures due to COVID-19. The legislator as well as the Revenue Agency have often been concerned with attributing to the SSDs, since their inception, a tax qualification. It may be useful to recall in quick passages those that are milestones in the history of these amateur sports subjects: the legislator, with the law 289/2002, establishes the SSDs and grants them “the provisions of the law of 16 December 1991, n. 398, and subsequent amendments, and the other tax provisions regarding amateur sports associations “: in other words, the concessions intended for the world of ASDs, non-commercial entities, are extended to SSDs with a legal provision, a sort of forcing, an intervention active of the legislator without which these concessions could not apply to SSDs which obviously belong to a world other than that of non-commercial entities; the Revenue Agency with circular 21/2003, commenting on law 289/2002, immediately feels the need to provide a tax qualification of the SSDs and declares that “amateur sports clubs established in joint stock companies, even if they do not pursue the purpose of profit , maintain, from the fiscal point of view, the commercial nature …… The absence of the profit aim does not affect the tax qualification of the entities in question. The income of amateur sports clubs is therefore determined, in principle, according to the provisions of Title II, Chapter II, of the TUIR (Presidential Decree no. 917 of 1986) relating to companies and commercial entities “; recently the Revenue Agency, with circular 18/2018, reaffirmed the provisions of circular 21/2003 using the same expressions and confirming the commercial nature of the SSDs and their classification in the group of commercial entities. Revenue is based on the Consolidated Income Tax Act (TUIR), which in art. 73 qualifies all joint stock companies as entities having a commercial nature. We remind you that SSDs are joint stock companies, albeit with specific characteristics, the most important of which is the absence of profit, which however does not affect their qualification. , the aforementioned sources and the approach of the Revenue Agency should easily provide answers to questions such as: in the calculation of the grant for the loss of turnover, what revenues do the SSDs take into consideration? in calculating the rental bonus, what revenues do SSDs refer to to verify the decline in revenue? SSDs, as a corporation, should behave exactly like all other commercial entities, that is, consider revenues “the consideration for the sale of goods and of the provision of services to the production or the exchange of which the activity of the company is directed “(art. 85 of the TUIR). 5-05717 / 2021) and on the occasion of the response to a ruling (DRE Veneto n.907-323 / 2021) the financial administration reached diametrically opposed conclusions stating that SSDs should behave like non-commercial entities and therefore measure the contraction in revenues only referring to the part of them subject to IRES tax (eg: sponsorships and advertising collected in the flat-rate regime law 398/91) and entirely neglecting the revenues from institutional activities ale (season tickets for sporting activities collected by card-holders). as founding, they should not be questioned, the commercial or non-commercial nature of an institution cannot change like the movement of a wind vane.If the legislator had wanted to treat SSDs, for subsidy purposes, in a different way from others commercial entities should have foreseen it with a specific rule, if it has not done so it means that it has relied on the general principles, for which an SSD is a commercial entity.It is not acceptable for the financial administration to perform a supplementary function by applying the rule in distorted and different from the will of the legislator. Read the news on the Asi website