Preliminary transfer of shareholdings with fixed taxation

The Italian Supreme Court, Order no. 17904 of 23/06/2021, ruled on the scheme applicable to the preliminary contract for the sale of shareholdings, disregarding the indications given by the Tax Revenue Office.

The Italian Supreme Court confirmed the orientation of the judges of merit who deemed Article 10 of the Tariff, Part One, attached to Presidential Decree 131/1986 (TUR – Consolidated Registration Tax), which establishes the provision of a down payment and the application of a registration tax at the rate of 3 percent for “preliminary contracts of any kind”.

On the other hand, for the Italian Supreme Court, a distinction must be made between the case in which the preliminary contract is executed by means of a public deed or a notarized private deed, in which case article 11 applies, and the case in which the deed of assignment takes place by means of an unauthenticated private deed, in which case article 2 of the Tariff, Part Two, annexed to the TUR, applies.

In any case, both regulations provide for the application of a registry tax at a fixed rate (in the first case, in a fixed term; in the second case, in the event of use) for deeds relating to the “negotiation of equity investments in companies or bodies”, in which preliminary contracts must also be included.

In a nutshell, according to the Italian Supreme Court, taxation of a preliminary contract cannot exceed that provided for in the final contract, with the result that the preliminary contract will be subject to proportional taxation only as an advance taxation of the final contract, as the preliminary/final sequence is uniquely a demonstration of the ability to pay.