Cash flows from business continuity and dividends received by the investee company outside the scope of “new finance”

The Venice Court of Appeal, with its decision no. 1892 of 05/07/2021, ruled that the so-called “new finance” (“nuova finanza”), designed to generate an unallocated reserve destined to satisfy the creditors falling outside the constraint of compliance with the legitimate causes of pre-emption, must exclude flows deriving from the continuation of business, in the form of fees due by the company’s tenant, and also future dividends generated by operating profits.

According to the Venice Court, “both these items are not neutral with respect to the assets [of the debtor company] of which, on the contrary, they constitute active components, inasmuch as they are receivables deriving from acts of disposition of assets (rents) or inherent to rights of participation (dividends) already included therein. Similarly, according to the opinion of the Board of Statutory Auditors, the same can be said with regard to the greater value of the real estate complex owned, which the plan envisages deriving from the joint sale with the pertinent parking area, in view of the fact that – even if one were to attribute to such “greater value” the quality of a financial contribution (even though it cannot be assimilated to a form of “financing” in a technical sense) – the contribution would result in an increase in value and, therefore, in the increased price of an asset that is still part of the debtor’s assets”.