Costituzione di nuova società e sottoscrizione del capitale sociale – Holding period

Georg Hesse — Sun, 31 May 2026 21:20:30 +0000

In merito, si pone il dubbio interpretativo sulla sussistenza dei requisiti per beneficiare della pex, in considerazione dell’esistenza di partecipazioni acquisite nella fase di costituzione della conferitaria e di partecipazioni acquisite/ricevute successivamente in cambio del conferimento di azienda.
Secondo una risposta a interpello ancora inedita, si dovrebbe distinguere le partecipazioni detenute a seguito della costituzione della società da quelle ricevute per effetto del conferimento di azienda.
In questo caso, la plusvalenza realizzata andrebbe “spalmata” sulle diverse quote di partecipazione con differente anzianità di possesso, al fine di applicare l’esenzione solo sulla plusvalenza relativa alla quota con i requisiti della participation exemption.
Il regime di esenzione troverebbe applicazione secondo un criterio proporzionale per il quale la riferibilità della plusvalenza alle due quote di partecipazione è determinata sulla base del rapporto di valore di ciascuna quota sul valore complessivo delle quote di partecipazione nel patrimonio della partecipata oggetto di cessione.

Der Beitrag Costituzione di nuova società e sottoscrizione del capitale sociale – Holding period erschien zuerst auf .

Incorporation of a New Company and Subscription of Share Capital – Subsequent Capital Increase by Means of a Business Contribution under Tax Neutrality – Transfer of the Participation Received – Holding Period

Georg Hesse — Sun, 31 May 2026 21:18:46 +0000

The analysis concerns the case of a business contribution followed by the disposal of the participation received in exchange. In this regard, an interpretative question arises as to whether the conditions for benefiting from the Participation Exemption (PEX) under letters (a) and (b) of paragraph 1 of Article 87 of the TUIR are satisfied — specifically, the minimum holding period and the classification of the participation as a long-term financial asset — having regard to the coexistence of participations acquired at the time of incorporation of the receiving company and participations acquired or received in exchange for the business contribution.

According to an as yet unpublished ruling in response to a tax ruling request (interpello), a distinction ought to be drawn between participations held as a result of the company’s incorporation and those received by virtue of the business contribution. In such a case, the capital gain realised on disposal would need to be apportioned across the different tranches of the participation, each carrying a different acquisition date and holding period, so as to apply the exemption exclusively to the portion of the gain attributable to the tranche satisfying the conditions for the Participation Exemption.

In other words, the exemption regime would apply on a proportional basis, whereby the attribution of the capital gain to the two tranches of the participation is determined according to the ratio of the value of each tranche to the total value of the participations held in the equity of the company being disposed of.

Der Beitrag Incorporation of a New Company and Subscription of Share Capital – Subsequent Capital Increase by Means of a Business Contribution under Tax Neutrality – Transfer of the Participation Received – Holding Period erschien zuerst auf .

Corporate link – Significant influence – Family or affinity relationships – Corporate group

Georg Hesse — Sun, 26 Apr 2026 16:53:14 +0000

In its judgment of 13 April 2026, No. 9260, the Supreme Court held that an external corporate link requires proof of the actual exercise of significant influence by one company over the strategic shareholders’ decisions of another. Such influence cannot be inferred solely from family or affinity relationships between individuals who are shareholders of different companies.

Furthermore, the establishment of such a corporate link does not give rise to a presumption, within the meaning of Article 2497-sexies of the Italian Civil Code, of the existence of a corporate group. For this purpose, strict evidence is required of the exercise of direction and coordination by the parent company over the other affiliates.

Der Beitrag Corporate link – Significant influence – Family or affinity relationships – Corporate group erschien zuerst auf .

Consultancy costs recharged by the parent company – Deductibility – Conditions (Supreme Court, 21 April 2026, No. 10456)

Georg Hesse — Sun, 26 Apr 2026 16:34:07 +0000

The ruling of 21 April 2026, No. 10456 addresses the requirement of business relevance under Article 109 of the Italian Income Tax Code (TUIR) and the deductibility of consultancy services recharged by a parent company within the framework of intra-group “service arrangements” governed by private agreements.

It clarifies that, for the purposes of deducting intra-group consultancy costs, it is not sufficient to rely on a mere formal indication of a fixed percentage cost allocation contained in a multi-year framework agreement, nor on the mere existence of signed consultancy contracts or the absence of qualified personnel within the recipient company.

Instead, there must be evidence of the specific costs actually incurred in relation to the services effectively rendered during the relevant tax period (see also Supreme Court, 13 February 2025, No. 3750).

Accordingly, neither the production of service agreements nor the invoicing of fees alone is sufficient; rather, it must be specifically demonstrated that the recipient affiliate obtained an actual or potential benefit from the services provided.

Der Beitrag Consultancy costs recharged by the parent company – Deductibility – Conditions (Supreme Court, 21 April 2026, No. 10456) erschien zuerst auf .

Commerciality requirement – Companies constructing electricity generation plants – Absence (Italian Revenue Agency ruling of 1 April 2026, No. 97)

Georg Hesse — Mon, 06 Apr 2026 06:04:16 +0000

According to the ruling of the Italian Revenue Agency dated 1 April 2026, No. 97, the disposal of shareholdings in companies engaged in the construction of electricity generation plants does not meet the commerciality requirement pursuant to Article 87(1)(d) of the TUIR for the purposes of the participation exemption, where the operational structure is not potentially capable of initiating the production process.

Der Beitrag Commerciality requirement – Companies constructing electricity generation plants – Absence (Italian Revenue Agency ruling of 1 April 2026, No. 97) erschien zuerst auf .

Requirement of commercial activity – Preparatory activities for property development (Italian Supreme Court, 23 March 2026, No. 6732)

Georg Hesse — Sun, 29 Mar 2026 09:29:22 +0000

The ruling of the Corte di Cassazione of 23 March 2026, No. 6732, addressed the existence of the requirement of commercial activity for PEX purposes in relation to a company that initiated a redevelopment project concerning a real estate complex of a former foundry.

It is noted that the rationale of Article 87 of the TUIR is to grant the tax exemption on capital gains arising from the disposal of shareholdings, provided that the subsidiary effectively and concretely carries out a commercial activity, albeit within the broader meaning set out in Article 55, but not an activity limited to the mere holding or management of real estate or to purely preparatory activities.

Der Beitrag Requirement of commercial activity – Preparatory activities for property development (Italian Supreme Court, 23 March 2026, No. 6732) erschien zuerst auf .

Contribution of a business – Continuity of the holding period of the contributed business and the acquired shareholding – Acquisition date of individual assets – Irrelevance (AIDC Practice Statement No. 235)

Georg Hesse — Sat, 21 Mar 2026 19:43:17 +0000

In determining the holding period of the shareholdings received as a result of a business contribution pursuant to Article 176 of the Italian Income Tax Code (TUIR), the relevant period is the time during which the business or business unit, considered as a whole, has been held. The acquisition date of the individual assets composing it is irrelevant.

Der Beitrag Contribution of a business – Continuity of the holding period of the contributed business and the acquired shareholding – Acquisition date of individual assets – Irrelevance (AIDC Practice Statement No. 235) erschien zuerst auf .

Subordination – Concept of financing – Assessment of the conditions – Relevant point in time (Italian Supreme Court, 12 March 2026, No. 5582)

Georg Hesse — Sat, 14 Mar 2026 20:32:48 +0000

By order No. 5582 of 12 March 2026, the Italian Supreme Court (Corte di Cassazione), concerning the subordination of the repayment of shareholders’ loans in favour of the company (Art. 2467 Italian Civil Code), reaffirmed that:

the notion of “financing”, for the purposes at issue, also includes the granting of security interests or, as in the present case, personal guarantees (see Cass. No. 30054/2023);
the existence of the statutory conditions giving rise to subordination must be assessed both at the time when the financing was granted and at the time when repayment is requested (see Cass. No. 15196/2024).

It was further clarified that where the company opposes the repayment of the financing requested by the shareholder, the burden of proving the existence of the conditions set out in Art. 2467 of the Italian Civil Code lies with the company.

Der Beitrag Subordination – Concept of financing – Assessment of the conditions – Relevant point in time (Italian Supreme Court, 12 March 2026, No. 5582) erschien zuerst auf .

Minimum shareholding of 5% or €500,000.00 – club deals

Georg Hesse — Sat, 21 Feb 2026 19:59:55 +0000

The agenda item of 29 December 2025 No. 9/2750/168 committed the Government to assess the appropriateness of taking any initiative aimed at clarifying, including through administrative means, that club deal transactions carried out through the incorporation of a special purpose vehicle do not constitute transactions intended to circumvent obligations or prohibitions provided for by law and, therefore, do not constitute a case of abuse of law pursuant to Article 10-bis of Law No. 212/2000.

Der Beitrag Minimum shareholding of 5% or €500,000.00 – club deals erschien zuerst auf .

Foreign tax credit – Entitlement (C.G.T. I Como, judgment of 4 November 2025 no. 297/1/25)

Georg Hesse — Sun, 15 Feb 2026 21:30:06 +0000

The judgment of the C.G.T. I Como of 4 November 2025 no. 297/1/25 confirmed the principle established by the Supreme Court case law (Cass. 1 September 2022 no. 25698; Cass. 16 April 2024 no. 10204), according to which taxes paid abroad by individuals resident in Italy on dividends taxed in Italy by way of final withholding tax or substitute tax may be credited against such Italian taxes or claimed as a refund from Italy.
The case examined by the judges in Como refers to relations with Switzerland, whose Double Taxation Convention with Italy does not provide for any limitations in this respect.

Der Beitrag Foreign tax credit – Entitlement (C.G.T. I Como, judgment of 4 November 2025 no. 297/1/25) erschien zuerst auf .