Former shareholders and tax debts of an extinguished company: no automatic liability
The case under review
With judjment no. 7984/11/2025, the Regional Tax Court of Appeal of Campania revisited the liability of former shareholders for the tax debts of a capital company struck off the Companies Register. The case arose from the service of a payment notice on a taxpayer in his capacity as former shareholder and heir of another former shareholder of the dissolved company, without the prior issuance of a separate assessment notice addressed to him personally.
The Court clarified that a former shareholder’s liability is neither automatic nor unlimited. Such liability arises only if, and to the extent that the shareholder received cash or other corporate assets in the two financial years preceding the liquidation or during the liquidation phase itself. This liability is civil in nature, based on the concept of unjust enrichment, and does not constitute a continuation of the tax obligation originally borne by the extinguished company.
Burden of proof and the required assessment notice
Precisely because it is autonomous from the company’s tax debt, this form of liability must be established through a specific and reasoned assessment act pursuant to Article 36(5) of Presidential Decree no. 602/1973. It is therefore unlawful for the tax authorities to proceed directly with the enrolment on the tax roll and the issuance of a payment notice based solely on the company’s debt. The burden of proof lies with the Italian Revenue Agency, which must demonstrate that the former shareholder actually received corporate assets, this being a constitutive requirement of the tax claim.
Corporate demerger and creditor protection: the scope of liability
The principle affirmed by the Supreme Court
With Order no. 32551/2025, the Italian Supreme Court clarified the system of creditor protection in corporate demergers under Article 2506-quater of the Italian Civil Code. The debt remains primarily chargeable to the company whose assets include the legal relationship from which the obligation arose, regardless of whether that relationship is transferred to a beneficiary company or remains with the demerged company. Alongside this direct and full liability, a secondary and partial joint liability applies to other companies involved in the demerger. Such liability is limited to the amount of net equity allocated to each company and operates under a beneficium ordinis mechanism, aimed at balancing creditor protection with the interests of the beneficiary companies
The rationale of joint liability and the net equity cap
The joint liability of the companies participating in the demerger serves to protect creditors against obligations originating prior to the transaction, irrespective of their final allocation. In line with the case law of the Court of Justice of the European Union, the Supreme Court extends this mechanism to liabilities identified after the demerger (such as environmental damages), provided they stem from conduct predating the transaction.
However, the reference to “net equity” must not be construed dynamically: it corresponds to the value resulting from the demerger plan and is not to be reduced by taking into account joint obligations arising after the demerger.
In proceedings concerning the non-performance of obligations arising before the demerger, all companies involved in the transaction qualify as necessary co-defendants. The creditor may therefore bring a direct claim against the company to which the relevant legal relationship has been allocated and, subsidiarily, against the other companies, within the statutory net equity limits.
Unilateral waiver of a shareholding
The principle: waivability of the participation interest
Following the ruling of the Joint Sections of the Supreme Court recognizing the legitimacy of the unilateral waiver of ownership rights over real estate, Roman notaries have examined whether the same legal scheme may be extended to equity interests in capital companies. With Opinion No. 4/2025, the answer is affirmative: a shareholding, as a transferable and disposable proprietary right, may be the object of a unilateral waiver, provided that such transaction is not prohibited by law and complies with the mandatory rules governing the relevant corporate form.
Conditions, limits and effects of the waiver
The waiver is not, however, freely admissible. Its validity is subject, first and foremost, to the existence of a specific provision in the articles of association governing in advance the allocation of the waived shareholding, thereby excluding the possibility that it remains without a holder. The equity interest may accordingly be attributed to the other shareholders (either proportionally or selectively) or to the company itself, to the extent permitted under the applicable statutory framework.
The waiver must be made in written form, preferably by means of a public deed or a notarised private agreement, also in light of the filing requirements with the Companies’ Register and its potential qualification as an indirect gratuitous transfer. Certain pathological scenarios remain excluded, such as a waiver by the sole shareholder or transactions producing effects incompatible with the company’s continuity (for example, unlawful reductions of share capital).
Non-competition clauses in agency agreements: valid even without consideration?
The principle affirmed by the Supreme Court
With Order No. 1226/2026, the Italian Supreme Court reaffirmed that, within an agency agreement, a post-termination non-compete clause remains valid even where no separate and specific consideration is provided in favour of the agent, or where the parties have expressly excluded such counter-performance.
According to the Court, Article 1751-bis of the Italian Civil Code does not provide for nullity in the absence of compensation, which allows the clause to be deemed valid even without dedicated remuneration. The restriction imposed on the agent may, in fact, be justified by the overall economic balance of the agency relationship, considered as a whole.
The issue of contractual cause
While consistent with the prevailing case law, the solution adopted by the Supreme Court raises systemic concerns. The lack of consideration does not merely involve a deviation from the statutory framework but may affect the very causa concreta of the agreement, potentially creating an imbalance capable of depriving the non-compete undertaking of its economic and individual function.
Breaches of EU restrictive measures in international trade
New criminal offences for import and export
As of 24 January 2026, a new criminal enforcement framework has entered into force in the field of international trade. Legislative Decree No. 211/2025, implementing Directive (EU) 2024/1226, has introduced into the Italian Criminal Code a new Chapter I-bis, devoted to offences against the European Union’s common foreign and security policy.
The key provision for businesses is Article 275-bis of the Criminal Code, which criminalizes the import, export or commercialization of goods in breach of EU prohibitions or restrictive measures. The offence also covers evasive conduct, including the use of false or misleading customs documentation or the concealment of the beneficial owner or the destination of the goods. A criminal liability threshold of EUR 10,000 applies; however, this threshold does not operate with respect to military goods and dual-use items, which remain criminally relevant regardless of value.
Corporate liability under Legislative Decree 231 and impact on compliance models
The decree has a significant impact on corporate liability as well. Breaches of EU restrictive measures are now included among the predicate offences under Legislative Decree No. 231/2001, through the introduction of new Article 25-octies.2.
The sanctioning framework has been substantially strengthened, providing pecuniary sanctions calculated as a percentage of the entity’s global annual turnover (up to 5%), as well as highly intrusive disqualifying measures.
As a result, companies are required to promptly update their organizational and compliance models, with particular attention to export control procedures, counterparty screening, and the traceability of international transactions.
Union centralised clearance: phase 2 officially launched
The second phase of Union Centralised Clearance for import (UCC) has officially entered into force, pursuant to Article 179 of Regulation (EU) No. 952/2013 (the Union Customs Code).
The mechanism allows economic operators holding AEO-C status and the relevant authorisation to lodge customs declarations with the customs office of the Member State in which they are established, even where the goods are physically presented in another EU Member State.
The customs office of control retains overall responsibility for managing the procedure, while the customs offices of presentation carry out the required physical inspections and checks, within a cooperative framework among national customs authorities.
Key developments byphase 2
Compared to the initial phase, which was limited to certain customs regimes and to the use of the standard declaration only, the new extension strengthens the role of Union Centralised Clearance as a structural simplification tool.
In particular, centralised clearance may now be combined with other facilitative procedures, such as the simplified declaration and entry in the declarant’s records. In addition, the scope of application has been extended to further customs regimes and categories of goods, including temporary admission, excisable goods, goods subject to the Common Agricultural Policy (CAP), and transactions involving special fiscal territories.