Corporate demerger: decision generally reserved to shareholders
The approval of a demerger transaction is generally reserved to shareholders, according to the rules governing amendments to the articles of association. In partnerships, a qualified majority is typically required, unless otherwise agreed, while in corporations the decision falls within the competence of the extraordinary shareholders’ meeting.
A key difference concerns withdrawal rights: in “traditional” demergers, dissenting shareholders are generally entitled to withdraw (with variations depending on the company type), whereas in demergers by spin-off such right is expressly excluded, including for limited liability companies and partnerships.
In certain cases, the decision may be delegated to the management body. This occurs in situations comparable to simplified mergers (full or at least 90% ownership), where the reduced risk of shareholder conflicts justifies procedural simplification. However, uncertainties remain regarding spin-off demergers, as the extension of simplified decision-making mechanisms is not expressly regulated and remains open to interpretation.
De facto director: continuity and effective managerial role required
The qualification of a de facto director requires evidence of stable involvement in the company’s management, coupled with the non-occasional exercise of decision-making powers. It is not necessary to exercise all formal powers of directors; a significant and continuous managerial role is sufficient, as inferred from dealings with employees, suppliers, clients, or contractual and administrative activities.
Broad powers of attorney may constitute relevant evidence where they enable effective managerial interference. In certain cases, even a single act may suffice if it demonstrates a non-occasional exercise of authority within a broader context.
Within corporate groups, being a director of the parent company does not automatically imply de facto directorship of subsidiaries (Cass. sent. n 10984/2026). However, such qualification may arise where direction and coordination activities translate into concrete managerial interference, effectively limiting the autonomy of subsidiary directors.
From a liability perspective, what matters is the actual exercise of managerial functions: individuals may therefore be held liable, including in insolvency-related criminal matters, even in respect of inactive companies, with regard to the management of residual assets.
Non-operating companies: a partial reform between improvements and critical issues
Legislative Decree No. 192/2024 amended the operativity test by reducing coefficients applied to certain assets (real estate, shareholdings, securities, and receivables), effective from fiscal year 2024. The reform mainly benefits holding companies and entities with significant financial assets, reducing the risk of being classified as non-operating.
However, significant issues remain. Real estate companies holding vacant properties continue to face penalties: even economically rational choices are rarely recognized as objective justifications, requiring taxpayers to disapply the rules in tax returns and exposing them to audit risks.
Further distortions arise from the unchanged 15% coefficient applied to fixed assets, often misaligned with actual productive capacity, particularly for SMEs. In the absence of a comprehensive reform, uncertainty persists, including with respect to interest-free loans, whose exclusion from the test is not yet formally acknowledged by the tax authorities.
Continuity of holding period for shares received in business contributions
In the contribution of a business or business unit, the shares received inherit the holding period of the contributed business, based on a principle of temporal continuity between the original asset and the newly received one.
The business must be treated as a single, unified asset; consequently, the holding period of individual assets is irrelevant. This approach is consistent with the unitary method used to calculate capital gains upon disposal.
Although some case law has focused on individual assets (ord. n. 8235/2023 e sent. n. 29442/2024), such an approach appears unsystematic. The unitary interpretation is more persuasive and is supported by rules governing spin-off demergers, which explicitly recognize continuity with respect to the business as a whole, transferring its “history” to the shares received.
Spin-off demergers: continuity and tax neutrality under scrutiny
Spin-off demergers, although qualifying as reorganization transactions, still present uncertainties from a tax perspective. A recent position of the tax authorities denied the beneficiary company a specific tax certification (DURF), questioning the continuity principle.
This interpretation appears debatable: the concept of “subjective position” applies only to items affecting taxable income, whereas the certification in question does not. Moreover, continuity between the demerged and beneficiary companies is a structural feature of the transaction, from which tax neutrality derives.
In conclusion, spin-off demergers retain the essential features of extraordinary transactions, namely continuity and tax neutrality. Restrictive interpretations risk undermining the systematic coherence of the tax framework, which traditionally links tax consequences to the legal nature of the transaction.