Gratuity of the Director’s Position in Family Holding Companies
The established principle
In family holding companies, it is common to appoint directors belonging to the family without assigning any remuneration, since the benefit of the role derives from managing the shared assets. However, the Italian Revenue Agency tends to presume the role to be remunerated by applying the presumption of an onerous mandate (art. 1709 Civil Code). The Supreme Court has rejected this automatic assumption, clarifying that the director’s relationship cannot be assimilated to a mandate, but rather constitutes an organic identification with the company (Cass. 285/2019; Cass. Joint Sections 1545/2017).
The context
The position taken by the tax administration has generated numerous disputes. In family holdings, where management activity is often aimed at protecting and enhancing common assets, the absence of remuneration represents a physiological choice. Hence the importance of clarifying the legal nature of the role.
The assessment
To prevent challenges, it is advisable to formalise the gratuity through a bylaw clause or, alternatively, in the appointment resolution. This precaution aligns the company’s intent with the principles established by the Supreme Court, reducing the risk of tax reassessments.
Waiver by the Sole Shareholder of Loans and Deductibility of the Loss
The practical case
A limited liability company wholly owned by another limited liability company waives repayment of an interest-free loan granted for patrimonial purposes. The waiver converts the debt into a capital contribution and increases the tax value of the shareholding, within the limits of the tax value of the credit.
The relevant principle
In the event of a subsequent liquidation of the subsidiary resulting in a loss, the deductibility of the capital loss depends on whether the participation exemption (PEX) applies. If the shareholding does not meet the requirements of art. 87 of the Italian Income Tax Code (TUIR), the loss is deductible; if instead the PEX conditions are met (business activity, continuous holding for 12 months, and classification as a fixed asset), the capital loss is entirely non-deductible.
The assessment
For the purpose of assessing business activity, companies in liquidation are evaluated based on the activity performed prior to commencement of the procedure. The waiver of the loan affects the tax cost of the shareholding and therefore the amount of the potentially deductible loss. It is thus essential to assess the fiscal impact of the operation in advance.
Shell Companies: Non-Application Can Also Be Proven in Court
The established principle
The presumption of non-operativity for shell companies is rebuttable. The taxpayer may demonstrate in court the objective circumstances that prevented the achievement of the presumed minimum income, without the need to have previously submitted a ruling request for non-application. This was reaffirmed by the Second-Instance Tax Court of Sardinia (Judgment 833/2/2025).
The concrete case
A real estate company did not pass the operativity test set out in art. 30 of Law 724/1994. The taxpayer demonstrated that the lack of income resulted from difficulties in renting a large standalone building, rather than from elusive purposes.
The decision
The Court annulled the tax assessment, confirming that the taxpayer may assert the justifying circumstances during litigation. The ruling request is not a mandatory step, but merely an option. Substantial defence rights are therefore guaranteed even in the absence of a prior non-application request.
Whistleblowing: The Data Protection Authority Approves the New ANAC Guidelines on Internal Channels
The established principle
The Data Protection Authority has issued a favourable opinion on the new ANAC Guidelines concerning internal reporting channels, confirming the centrality of protecting the whistleblower’s confidentiality and balancing investigative needs with the defensive guarantees of the reported party.
The context
The Guidelines, updated following the 2024 public consultation and subsequent discussions between ANAC and the Authority, aim to define appropriate technical and organisational models for managing reports, with particular attention to privacy risks and traceability of access.
The assessment
Among the main elements highlighted by the Authority are:
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the obligation to conduct a DPIA before activating the channels;
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the protection of confidentiality even for reports not qualifying as “relevant”;
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deletion of data within five years of closing the procedure, except for documents that must be retained.
The Authority considers email to be an inadequate reporting channel unless specific technical measures are implemented and reiterates the need to ensure complete non-traceability of access to internal channels.
Company Deletion and Residual Receivables: The Supreme Court Reaffirms the Survival of Claims
The established principle
With Order no. 29086 of 4 November 2025, the Supreme Court reaffirmed that deletion of a company from the Companies Register does not extinguish its receivables from third parties, which are transferred to the shareholders unless expressly waived or waived through unequivocal behaviour communicated to the debtor.
The case
A taxpayer challenged an assessment that deemed a debt owed to a deleted limited liability company to be extinguished. The Regional Tax Court had upheld the Revenue Agency’s position, assuming that deletion implied extinction of the credit.
The decision
The Supreme Court recalled its established position (Cass. 19750/2025), reiterating that deletion does not imply waiver of receivables and that failure to list them in the liquidation balance sheet is insufficient to presume extinction. It is the debtor who must prove circumstances justifying cessation of the obligation. The lower-court decision was therefore overturned.
Directors’ Certified Email (PEC): The Workplace Safety Decree Introduces a Questionable Prohibition
The established principle
Decree-Law 159/2025, amending the digital domicile requirement for directors introduced by the 2025 Budget Law, provides that a director’s certified email (PEC) may not coincide with that of the company. This represents a significant restriction compared with the previous Chamber of Commerce practice, which allowed such usage.
The context
The prohibition incorporates the restrictive interpretation of the Ministry for Business and Made in Italy (MIMIT), diverging from previous Chamber of Commerce practice, which allowed directors to indicate the company’s PEC in order to avoid additional costs and compliance burdens. The amendment fits within a regulatory framework already considered to lack real operational usefulness.
The assessment
The measure raises concerns both in practical and systemic terms: publication of a personal PEC is equivalent to publishing the director’s physical domicile, despite no analogous restrictions ever having existed in the past. In the digital context, the prohibition appears devoid of rationale and potentially problematic even from a constitutional perspective. During the decree’s conversion process, there is room to revise the rule and realign with the more efficient Chamber of Commerce practice.