NEWSLETTER LEGAL N. 1 JUNE 2021

by LDP | Jun 3, 2021 | newsletter

FOCUS Covid-19: 80 % State-assisted financing

 

 

Decree-Law n. 73/2021 (the so-called “Decreto sostegni bis“), published in the Official Gazette on 25/05/2021, introduces a new public portfolio guarantee instrument through the Fondo Centrale PMI, which aims to support businesses (SMEs and mid-caps) in the restart phase related to the exit from the health emergency, providing them with access to medium to long-term financing. This facility concerns enterprises with up to 499 employees, which will be eligible for the guarantee without an economic or financial assessment by the Fund Manager. These loans have a duration of no less than 6 years and no more than 15 years and must be at least 60% dedicated to research, development and innovation projects or investment programmes. The choice of an 80% guarantee percentage allows, in addition to an adequate alignment of interests between the guaranteeing State and the financing entity obliged to maintain an appreciable degree of risk, also the operativity of the measure outside the Temporary Framework on State Aid for the Covid-19 emergency of the European Commission (19 March 2020), therefore not subject to the specific time limits of duration.

 

 

 

CORPORATE: the contract is invalid if concluded by a director in conflict of interest

 

 

A recent judgment of the Court of Turin focused on the rules set forth in Article 2475 ter, paragraph 1, of the Italian Civil Code, pursuant to which contracts entered into by directors of Ltd. who represent the company in a conflict of interest with the company – on their own behalf or on behalf of third parties – may be nullified at the request of the latter, if the conflict was known or recognisable to the third party. The Court, referring to previous Court’s rulings, specifies that the existence of a conflict of interest must be ascertained “concretely”, with reference to the individual act or transaction which, for its own characteristics, allows the creation of a profit for one party at the expense of the other. Indeed, for the purposes of the annulment of the contract, the company is required to prove, first, that the director, in connection with the particular transaction, was the bearer of an interest whose realisation was incompatible with the company’s interest (and, therefore, potentially harmful) and, second, that the third party knew or could have known of the conflict at the time of the conclusion of the contract.

 

 

 

A partner may also be an employee of a corporation

 

 

In a very recent ruling, the Italian Supreme Court returned to the issue of the compatibility between the position of shareholder/manager and that of employee in a limited liability company. In this regard, the decision states that, just as there is no incompatibility in principle between the position of member (not sole) of the managing body and that of employee, there are no obstacles to the creation of such a relationship between the company and the shareholder holding the majority of the share capital. This is the case even when the percentage of the share capital held corresponds to the minimum percentage required for the validity of the resolutions of the shareholders’ meeting, given the substantial extraneousness of the shareholder’s to the exercise of the management power – without prejudice, however, to the non-configurability of an employment relationship when the shareholder has in fact assumed the effective and exclusive ownership of the management powers. The status of shareholder, even as a “majority” shareholder, of a corporation, therefore, is not an obstacle to the existence of an employment relationship between the shareholder and the company itself, provided that the link of subordination, at least potential, between the shareholder and the management body can be identified.

 

 

 

M&A: Sales of shareholdings: legitimate symbolic or incremental price

 

 

According to the recent judgment of the Court of Rome, in presence of loss-making companies, it is possible to enter into contracts for the transfer of shareholdings at a symbolic price without such contracts necessarily being attributed to donations. The absence of a real consideration therefore does not necessarily imply that the transaction has to be qualified as an act of liberality, since, in the context of such transactions, the transferor, by means of such act (although not receiving a payment), achieves the realisation of his own legal interest, including the release from corporate debts. Similarly, a contract for the sale of a shareholding which provides for a consideration which is originally symbolic but which may be increased upon the occurrence of certain conditions (an earn-out clause) is deemed valid. The need for such clauses, in practice, is to be found not so much in the disagreement between the parties on the determination of the price, but in the need to update the economic/asset data on which the buyer has based its valuation of the shareholding.

 

 

 

RESPONSIBILITY UNDER LEGISLATIVE DECREE 231/2001: Role and duties of the Supervisory Board

 

 

The Court of Milan, with the judgment handed down in the well-known “Derivati MPS” case, provides an in-depth examination of the role and duties of the Supervisory Board. According to the orientation of the Court of Milan, the Supervisory Body plays the dual role of control of the compliance system and of preventive and repressive control of the underlying crimes committed by the entity. The Supervisory Board’s supervisory activity therefore takes the form of a series of checks on the Model, also carrying out activities to support the assessment of the risks of offences in terms of the likelihood of their occurrence and their impact on the company’s management, as well as to support the identification of the most appropriate measures to ascertain, mitigate, transfer and avoid potential risks. Ultimately, this involves constant monitoring of the overall adequacy of the Model. In the case in question, the Court concluded that careful monitoring by the Supervisory Board would certainly have prevented the recurrence of the offences that were being committed undisturbed, noting that the Supervisory Board had instead remained inactive and had merely taken note of what was happening.

 

 

 

TAXATION LAW: IMessage and WhatsApp not usable in tax proceedings

 

According to the guidance of the Provincial Tax Commission of Reggio Emilia, the messages sent with iMessage, as well as through WhatsApp, can not be a source of evidence in taxation because – in the absence of the possibility of proceeding to a controlled and certified extraction – their authenticity cannot be evaluated. In particular, it is highlighted as, with regard to the type of messaging “instant messaging system” – such as iMessagge and WhatsApp – “the storage of the same takes place exclusively on the individual phone device without leaving any trace unlike the common SMS messages, which are stored by telephone companies“. The only possibility of entry into tax proceedings is therefore through the prior acquisition in criminal proceedings through the mode of seizure under former Article 234 C.C.P., already recognized as fully valid by the Supreme Court.

 

 

 

Five-year statute of limitations for chamber fees

 

 

In a very recent ruling, the Supreme Court has stated that the chamber fee and related penalties are time-barred after five and not ten years.

The judges reached this conclusion on the basis of two arguments: (i) on the one hand, it is noted that the Chamber of Commerce fee is similar to periodic taxes, being a periodic or long-term obligation, to which Article 2948 no. 4 of the Civil Code applies, i.e. the five-year statute of limitations; (ii) on the other hand, given that the limitation period for tax penalties, pursuant to Article 20 of Legislative Decree 472/97, is five years, and given also that the limitation period must be uniform, the chamber tax must also be subject to the five-year limitation period. In these terms, the principle has a disruptive effect: all taxes, of whatever nature and kind, are subject to the five-year limitation period, unless there is a final judgment (in which case the limitation period becomes ten years pursuant to Article 2953 of the Civil Code). However, the issue is not clear: at present, the prevailing case laws seems to opt for the opposite orientation. It will therefore be necessary to wait for the evolution of rulings.

 

 

 

LDP remains at your disposal for any further information or in-depth analysis of the above topics.

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