A topic of particular interest is that of sale of shares in an operating company which has been affected by acorporate demerger transaction.
The typical case could be summarized as follows: the Alfa company carries out a commercial activity and is also the owner of a real estate complexpartly leased to third parties, partly used directly by the company itself.
Alpha implements a proportional split aimed at separating the real estate complex that is assigned to the Beta beneficiary.
It is the intention of the shareholders, following the demerger, alienate Alfa to third parties, but the same arise the problem of whether the operation presents abuse profiles.
The reasons for the spin off real estate can be varied.
It could happen that i third party buyers are not interested in Alfa’s real estate complex as they want to acquire the company and not the properties, perhaps residential buildings leased to third parties.
Often, then, the lack of interest also extends to the case of the instrumental property used directly by Alfa. Third party buyers may prefer pay a rentperhaps in view of an expansion of the business with consequent transfer of the same to other sites.
This type of operation was definitively cleared through customs by the resolution 97 / E / 2017.
Indeed, the Agency clearly states that the existence of an “undue tax advantage” is not found in a partial proportional division aimed at the creation of one or more companies intended to accommodate the operating branches of the company to be circulatedsubsequently, in the form of shareholdings by the shareholders who are natural persons.
It is highlighted as cannot impose itself on a natural person interested in monetizing the company (or a branch of it), owned by a company from the same investee, to circulate the company (or a branch of it) exclusively through its so-called direct sale by the investee company, with a related tax burden at the double taxation which affects, once, on the part of the corporate body (on the capital gain from the sale) and, on another time, on the individual shareholder (on the distribution of profits relating to said sale).
The clarification, that it distances itself from previous interventions of practiceit is very clear.
Moreover, a passage of the resolution also argues for the new conclusions with the fact that it is not possible to discriminate the spin-off operation with respect to the transfer of a company.
In the event of a company transfer, in fact, theArticle 176, paragraph 3, Tuir foresees so unequivocal that the sale of the shareholdings of the transferee company it does not constitute a case of tax avoidance.
Therefore, according to the Office, if it is permissible to transfer the company to a subsidiary company in fiscal neutrality and sell the transferee benefiting from the exemption regime referred to inarticle 87 Tuir, there is no reason to deny the lawfulness of the transfer by the shareholder of the shares of an operating company purified of real estate compendium through an operation of partial demerger.