The Tax Revenue Office is required to examine the deed as requested for registration without re-qualifying a total sale of shareholdings as a sale of a company

This is what was stated by the Court of Cassation in its Order filed on September 13, 2021, no. 24647, in which, with reference to the scope of art. 20 of Presidential Decree no. 131 of 1986, stated that “if it is undoubtedly that the Administration under this provision is not required to accept uncritically the qualification proposed by the parties or that “apparent form” to which the same art. 20 itself refers to, it is undoubtedly true that in this requalification activity, it cannot go beyond the typical negotiation scheme in which the deed can be framed, under penalty of artificially constructing a taxable case different from the one intended and involving different legal effects”.

In accordance with the Constitutional Court’s decision, the Supreme Court reiterated the irrelevance of the economic effect of the deed, which could, however, be the same in the case of total transfer of shareholdings and of a company, “it must be recognized that from a legal point of view the situations are absolutely different”.

On the basis of these considerations, stated that “the subject of investigation is not to ascertain what the parties have written, but the same have actually achieved with the settlement of negotiations, and so does not descend from the content of the specific statements of the parties themselves,” because “the tax of registration can act as a tax, when it is related, in proportion to the value of the act registered (contract, judgment, etc..). ) with economic content, taken by the legislator as an index of taxpaying capacity, and as a tax, when it is due in a fixed amount, in which case it finds as a prerequisite and justification the provision of a service, i.e. the registration (and preservation) of an act”.

On the basis of these considerations, stated that “the subject of investigation is not to ascertain what the parties have written, but the same have actually achieved with the settlement of negotiations, and so does not descend from the content of the specific statements of the parties themselves,” because “the tax of registration can act as a tax, when it is related, in proportion to the value of the act registered (contract, judgment, etc..). ) with economic content, taken by the legislator as an index of taxpaying capacity, and as a tax, when it is due in a fixed amount, in which case it finds as a prerequisite and justification the provision of a service, i.e. the registration (and preservation) of an act”.