Indirect Transfer of Shareholdings and Gift Tax
The use of “indirect” donations of corporate shareholdings is increasingly common, typically preceded by a contribution to a holding company under the controlled realization regime pursuant to Article 177(2) of the Italian Income Tax Code (TUIR).
The Issue of Abuse of Law
Although this technique does not provide an advantage in terms of income taxes compared to a direct donation, it may significantly reduce the taxable base of the gift tax, due to the different net asset value of the recipient holding company.
The Only Possible Safeguard: Non-Tax Reasons
To mitigate the risk of tax avoidance challenges, it becomes crucial to demonstrate the existence of valid and non-marginal non-tax reasons—such as governance needs or corporate reorganization—underpinning the choice of an indirect donation.
This confirms that the indirect donation of shareholdings can be an effective instrument, but it requires careful planning to avoid having the tax benefit recharacterized as abusive.
Cross-Border Demergers: New Rules under Legislative Decree No. 88/2025
Effective from 8 July 2025, Legislative Decree No. 88/2025 amended the framework governing cross-border (intra-EU) and international (extra-EU) demergers originally introduced by Legislative Decree No. 19/2023.
While the amendments do not overhaul the procedure, they make it clearer and more practical, particularly concerning the required documentation. Specifically:
- clearer guidance is provided on which documents Italian companies must prepare when demerging in favour of foreign entities;
- simplifications are introduced for handling documents issued by foreign authorities, even when formally defective.
Summary of the Procedure
The demerger process consists of three main stages:
- Preparation of the common project and of the documents for shareholders, creditors, and employees;
- Preliminary certification (in Italy issued by a notary), attesting compliance with formal requirements in the relevant jurisdictions;
- Final certificate, issued by the authority of the destination country, granting legal effect to the transaction.
The preliminary certificate thus legitimizes the demerger across the jurisdictions involved, while the final certificate enables the actual transfer of assets to the beneficiary company.
Corporate Governance Structures and the Role of Shareholders under Article 2409 of the Civil Code
The Venice Court has reaffirmed the importance of maintaining adequate organizational, administrative, and accounting structures pursuant to Article 2086 of the Civil Code, emphasizing that their absence may constitute a serious management irregularity.
The case concerned a complaint filed under Article 2409 of the Civil Code by a shareholder who alleged that the management body had remained inactive despite evident signs of financial distress. The Court upheld the claim, ordering a judicial inspection, finding that the failure to adapt corporate structures could endanger business continuity and seriously harm the company.
The ruling reiterates that:
- managerial discretion is limited by the obligation to adopt structures capable of promptly identifying early signs of crisis;
- shareholders may initiate proceedings under Article 2409 in the presence of serious organizational deficiencies;
- the procedure has a remedial rather than punitive nature, aiming to restore proper management, including through the appointment of a court-appointed administrator.
The decision reflects the prevailing case law trend towards strengthening the protection of business continuity, recognizing that inadequate organizational setups may amount to “serious irregularities” justifying judicial intervention.
Shell Companies: The Operativity Test Does Not Apply During the First Three Years
By Order No. 22007 of 30 July 2025, the Italian Supreme Court (Corte di Cassazione) ruled that the operativity test does not apply to companies during their first three years of existence.
The Court clarified that:
- the first financial year is expressly excluded under Article 30(2)(2) of Law No. 724/1994, as it represents a start-up phase;
- the test cannot apply in the second and third years either, since it requires three complete, comparable fiscal periods, and the first year cannot be regarded as “active.”
Consequently, the “non-operating company” regime is effectively neutralized during the first three years of activity: in the absence of the statutory presumption, the Revenue Agency may challenge non-operativity only by providing concrete evidence.
Dissolution of Companies and the Fate of Receivables
In Judgment No. 19750 of 16 July 2025, the Joint Sections of the Supreme Court held that the deletion of a company from the Companies Register does not automatically extinguish its receivables, which are transferred to the shareholders.
The extinction of a receivable occurs only where the creditor has clearly expressed the intention to release the debtor; the mere omission of the receivable from the final liquidation balance sheet is insufficient.
This ruling departs from the 2013 precedent, which had treated such omission as a presumption of waiver.
In summary, receivables “forgotten” in the balance sheet survive the company’s cancellation and are transferred to shareholders, who may pursue recovery without needing to prove a specific allocation—unless the debtor provides contrary evidence.
Decree-Law No. 116/2025: Stricter Environmental Crime Provisions and New Corporate Obligations
Published in the Official Gazette on 8 August 2025, Decree-Law No. 116/2025 introduces urgent measures on waste management, remediation of the “Land of Fires” area, and assistance to populations affected by natural disasters.
The decree tightens criminal penalties for unlawful environmental activities, converting many misdemeanours into felonies and imposing harsher sanctions when committed by company owners or officers. The main innovations concern:
- abandonment or disposal of waste, including hazardous waste, now punishable by imprisonment;
- unauthorized management or landfill operations, illegal shipments, and unlawful waste burning, with aggravated penalties where there is risk to persons or the environment;
- liability of company owners and managers for failure to supervise employees.
With respect to corporate administrative liability, the Decree amends Article 25-undecies of Legislative Decree No. 231/2001, adding new environmental offences as predicate crimes and increasing both pecuniary and disqualification sanctions.
For businesses, this entails the need to update their 231 Organizational Models, assess the newly introduced risks, and strengthen internal control systems to prevent unlawful conduct and mitigate exposure to sanctions.