Quantification and noticing of the disposal of goods and of the rendering of services made without compensation to a Third Sector Institution are relevant for the establishment of the nature of the general interest activities and the nature of the institution.
Article by our associate Gianni Mario Colombo
The Third Sector reform considered the issue of noticing the gratuitousness in the performance of general interest activities (article 5) and of activities (article 6) otehr than the rendering of services and free transfers made to Third Sector Institutions. The Third Sector’s code refers to the gratuitousness in relation to: a) the secondariness limit referred to in article 6 for other activities; b) the determination of the commercial or non commercial nature of the institution (article 79, cl. 5).
As for the first point, the Ministry of Labor decree shall establish the criteria and limits of instrumentality and secondariness of the activities other than that of general interest “thinking about the pool of resources, voluntary and free too, used in such activities in relation to the pool of resources, voluntary and free too, used in general interest activities”.
In order to have at disposal the necessary data for determining the aforementioned relationship, it’s necessary to quantify those resources and insert it in the collection of administrative facts of management. Criticity refers to the criteria of resources enhancement. Clarifications are expected from the Ministerial Decree mentioned above.
As for the second point, article 79, cl. 5 ld 117/2017 defines the Third Sector Institution as non commercial when the commercial income is not prevalent compared to non commercial one “taking into account the normal value of transfers or services related to the activities performed in a non commercial manner”. In accordance with article 9 of Tuir, normal value stands for the price or the compensation generally charged to the same kind of or similar goods and services, in case of freedom of competition or at the maximum stage of commercialisation, in time and place where goods or services have been acquired or rendered and, failing this, in the nearest time and place. This is the general rule, valid for all the economic subjects. In this particular case, in our view, interventions should be essential, at least at a ministerial level, in order to define the normal value of the free transfers and services as part of the Third Sector Institutions. Lastly, it seems that the concept itself of non commercial nature of the carried out activity is affected by the topic of gratuitousness. In fact, according to article 79 cl. 2, activities carried out free-of-charge or on payment of compensations that are not over the “actual costs” have a non commercial nature.
The explanatory memorandum to the Third Sector Code believes that within the actual costs there are both direct and indirect costs. But according to a corporate logic, it is clear that the input costs must be considered and also the implicit costs (for example voluntary activities) which contribute to the realization of the business volume reached by the institution, to the point that in a lot of cases institutional purposes could not be achieved without their contribution.
At this point it’s not clear the reason why the enhancement of free services and of goods acquired free of charge cannot be included in the calculation of the “actual costs”. In conclusion, it is clear that the concept of gratuitousness enters in its own right in the administrative accounting system of Third Sector institutions, but at the moment there are difficulties in its valorization.
This article has already been published on Ratio Mattino