Corporate Demerger: Enhanced Creditor Protection and Joint and Several Liability Among the Companies Involved
Case Overview
Order No. 32551 of 13 December 2025 of the Italian Supreme Court (Corte di Cassazione) addresses creditor protection in demerger transactions, clarifying that creditors may bring claims both against the beneficiary company to which the legal relationship has been allocated and, jointly and severally, against the original company and the other companies resulting from the demerger.
This applies even where the creditor has not filed an objection to the demerger plan. In proceedings aimed at obtaining performance, a necessary joinder of all companies involved may also arise. The case concerned a preliminary agreement entered into with a company that was subsequently partially demerged, resulting in two newly incorporated entities. On appeal, the creditor had extended the claim to these entities, but the appellate court deemed the claim new and therefore inadmissible.
Regulatory Framework and Supreme Court Ruling
Referring to Article 2506-bis of the Italian Civil Code, the Court reiterated that a demerger entails a clear allocation of assets and liabilities between the beneficiary companies and those retained by the demerged entity.
Article 2506-quater provides that, once the demerger is effective, the company to which the relevant legal relationship has been assigned is primarily liable. However, paragraph 3 establishes an additional safeguard: in the event of default by the beneficiary company, all companies participating in the demerger are jointly and severally liable.
This guarantee operates independently from preventive creditor protection mechanisms and is cumulative thereto.
The Court also referred to precedent No. 2457/2024, clarifying that joint and several liability has a subsidiary nature, as it presupposes prior default by the beneficiary company. Consequently, procedural joinder of all co-obligors is required due to the indivisibility of the claims.
Contributions to Family Holding Companies: No Abuse of Law
Case Overview
The amended wording of Article 177, paragraph 2-bis of the Italian Income Tax Code (TUIR) allows the contribution of qualifying minority shareholdings into family holding companies, expressly permitting the participation of the transferor’s family members in the transferee entity.
In practice, two operational structures are commonly adopted:
a) the transferee is already a “family company” at the time of contribution;
b) the holding company is initially incorporated as a single-member entity, with family members entering subsequently through share transfers, capital increases, or donations (full or bare ownership).
Post-Contribution Transactions
The second approach is typically used in generational succession planning: the contribution is followed by transactions enabling family members to join the shareholding structure.
Following such steps, the resulting structure is equivalent to scenario (a), which is expressly permitted by law.
Since the final outcome falls squarely within the scope of Article 177(2-bis), no abusive intent can be inferred from the intermediate steps. Post-contribution transactions do not constitute abuse of law, as they represent ordinary and consistent steps aligned with the objectives of family and generational reorganization.
Legislative Decree 231/2001: Persistent Application Errors Highlighted by the Supreme Court
Identified Issues
Nearly 25 years after the enactment of Legislative Decree No. 231/2001, the Supreme Court continues to identify recurring interpretative errors by both companies and lower courts. Criminal divisions have emphasized misapplications of the system’s core principles despite well-established case law.
Autonomy of Corporate Liability
The Court reiterated that corporate liability does not automatically derive from the liability of the individual offender. Autonomous and complete proof of all elements of the administrative offence is required, even where the underlying criminal offence is time-barred.
As a result, procedural mechanisms applicable only to individuals are not admissible in “231 proceedings,” including:
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civil party participation (parte civile);
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the “particular tenuousness of the offence”;
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probation measures (messa alla prova).
Limitation Periods
Errors also persist in relation to limitation periods. Article 22(4) of Legislative Decree 231/2001 provides that, once the five-year limitation period is interrupted, it remains suspended until a final, non-appealable judgment is issued. Criteria applicable to individuals cannot be transposed to corporate liability.
Representation of the Entity and Powers of Attorney
Further issues concern Article 39(1), which prohibits a legal representative under investigation or indictment from representing the entity. This is an absolute prohibition, confirmed by the Joint Sections of the Supreme Court.
Violation results in:
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nullity of subsequent procedural acts;
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inadmissibility of appeals due to lack of standing.
Agency Agreements: Post-Termination Non-Compete Clause Valid Even Without Consideration
Case Overview
With Order No. 1226/2026, the Supreme Court revisited the validity of post-contractual non-compete clauses in agency relationships, confirming that such clauses remain valid even in the absence of specific consideration, or where the parties have expressly excluded it.
According to the Court, Article 1751-bis of the Civil Code does not provide for nullity in the absence of consideration. The restriction imposed on the agent may be justified within the overall economic balance of the contractual relationship, without the need for separate compensation.
Consideration and Synallagma
While consistent with established case law, the decision raises critical issues. Article 1751-bis regulates a synallagmatic relationship based on mutual performance: the agent’s non-compete obligation is typically linked to compensation from the principal.
Affirming the validity of the clause without consideration appears difficult to reconcile with general principles governing reciprocal contracts. In such frameworks, invalidity arises not from the absence of an express statutory sanction, but from the lack of a concrete contractual cause. Where economic reciprocity is absent from the outset, the clause may be deemed null for lack of justification.
The ruling confirms a “formal” interpretative approach focused on the absence of an explicit nullity provision in Article 1751-bis.
Assignment of Lease Agreements: VAT Treatment
Overview
In real estate management practice, the VAT treatment of lease assignment is particularly relevant. The Italian Revenue Agency classifies such assignments as taxable supplies of services pursuant to Article 3(2)(5) of Presidential Decree No. 633/1972, subject to fixed registration tax under the principle of VAT-registration tax alternativity (Circulars No. 36/2003 and 33/2006).
Only where the transferor does not qualify as a VAT taxable person does the assignment become subject to proportional registration tax (Articles 31 and 41 of Presidential Decree No. 131/1986).
Tax Authority Position and EU Case Law
In ruling No. 16/2019, the Revenue Agency confirmed that the assignment of a lease agreement is subject to VAT even where the underlying lease is exempt. This interpretation aligns with EU case law requiring a restrictive interpretation of VAT exemptions (CJEU, Case C-461/12) and distinguishing between the assignment of a contract and the underlying service (CJEU, Case C-242/08).
Accordingly, the assignment of a lease—entailing the substitution of the tenant in contractual rights and obligations—is subject to the standard VAT rate of 22%.
Earnest Money (Caparra Confirmatoria): Fixed Registration Tax in Case of Judicial Termination
Case Overview
With Order No. 2816 of 8 February 2026, the Supreme Court held that the repayment of double the earnest money, ordered by a court following termination of a preliminary agreement due to the seller’s breach, is subject to fixed registration tax.
The Revenue Agency had applied proportional tax, considering the judgment as a monetary condemnation under Article 8(1)(b) of the Tariff attached to Presidential Decree No. 131/1986.
Legal Framework and Decision
The taxpayer argued—successfully—that the judgment did not merely impose payment, but declared the termination of the contract, thus falling under the special provision of Article 8(1)(e), which provides for fixed tax in cases of termination, even where restitution obligations arise.
The Court qualified letter (e) as a special rule applicable where the judgment eliminates the effects of an already taxed contract and restores the original patrimonial situation.
The repayment of double the deposit does not reflect new taxable capacity but has a restorative function, constituting an ancillary obligation to the termination. Consequently, fixed registration tax applies.
Self-Remedy (Autotutela): Only the First Refusal Is Appealable
Case Overview
The Tax Court of Isernia (Judgment No. 198/2/2025) rejected a taxpayer’s appeal against the deemed refusal (silenzio-rifiuto) of the Revenue Agency concerning a refund request for taxes paid following a 2022 assessment notice. The taxpayer claimed the notice was unlawful due to an incorrect assessment of late filing.
Repeated Self-Remedy Requests
It emerged that the heirs had already submitted a first self-remedy request in March 2022, rejected the following month. A second request was filed in November 2022, and the subsequent deemed refusal was challenged.
The Court clarified that multiple self-remedy requests cannot be filed in respect of the same final act in order to select which refusal to challenge. Only the refusal—express or implied—relating to the first request is appealable.
Decision
As the taxpayer had not challenged the initial refusal within the statutory deadline, the appeal against the second deemed refusal was declared inadmissible. The Court reaffirmed that repeated filings do not reopen litigation time limits.