20 февраля, 2024
Taxation of the shareholders’ loan enacted in the minutes of the shareholders’ meeting (Article 22 paragraph 2 of Presidential Decree No. 131/1986)
The Supreme Court of Cassation, with judgment No. 1960, section V, of 18 January 2024, following the intervention of the United Sections with judgment No. 14432 of 24 May 2023, excludes the taxability of a shareholders’ loan set forth in a shareholders’ meeting minutes relating to the increase of the share capital of a limited liability company.
In particular, the Supreme Court stated that:
- in the matter of registration tax, the resolution of the shareholders’ meeting for an increase of the share capital, achieved by means of the allocation of a shareholder loan concluded orally with the company, is not subject to the tax, even where the statement of the previous non-registered loan can be found, since the allocation determines the termination of the effects of the loan, by reason of the aforesaid use, thus giving rise to the cause of non-taxability pursuant to Article 22(2) of Presidential Decree No. 131 of 1986;
- the loan ceased to have effect following the final capitalisation of the amount already paid by the shareholder to the company which resulted in the extinction (by waiver, but before that by consideration: cf. Italian Supreme Court of Cassation, Section 1, 19 March 2009, No. 67011) of the company’s obligation to repay the shareholder, if not before, then at the same time or in execution of the deed of appointment;
- with reference to the admissibility of set-off between the receivables claimed by shareholders for loans and the contribution debts that the shareholder has towards the transferee company, it has already clarified that the loan is extinguished at the very moment in which the receivables arising therefrom are set off.
