In overwhelming majority In cases, the transfers of companies owned by “private” natural persons are structured, where possible, as transfer of company shares rather than as a transfer of the business complexthe latter operation which usually presents greater complexity.
In these cases, it can be said that, perhaps in the face of a small price discount, thetax interest of the transferring party the “check” with respect to the tax interest of the purchasing party.
There is no doubt, in fact, that the transferee would be better off buying theagency resulting in the possibility of registering a goodwill fiscally relevant. On the other hand, for the salesperson natural person, the capital gain deriving from the sale of the company shares, it benefits from a tax regime more tenuous than the personal income tax, through the application of asubstitute tax of 26%.
Moreover, in the last twenty years, the seller has been able to systematically exploit the revaluation of equity investments not listed referred to inarticle 5 of Law 448/2001whose terms have been promptly reopened year after year up to the umpteenth repetition of the facility provided for shareholdings owned as of January 1, 2022 by first of the Legislative Decree 17/2022 and, subsequently, of the relative conversion law which moved from 15 June 2022 to November 15, 2022 the term for:
- draw up and certify the valuation report the shareholding to be revalued;
- pour thesubstitutive tax in full or, in the case of payment in installments, the first of the three annual installments of the same amount, to be calculated by applying the 14% on the appraisal value.
With this, therefore, in place of the tax of 26% on 100% of the capital gain arising from the sale, the seller can pay the tax of 14% on the revalued valueminimizing or even eliminating the surplus value from assignment.
Note that it is even possible to proceed with the drafting andsworn statement of the appraisal, and therefore to the identification of the value from subject to the substitute tax of 14%, too subsequently with respect to the sale of the shareholding as well as the determination of the definitive priceprovided that the deadline established by the law (15 November 2022 for the revaluation of the shares held on 1 January 2022).
In fact, generally, in the context of a sale of shares, the definitive price it is only determined later than the date from effectiveness of the saleon the occasion of which only the so-called is known provisional price.
The final price differs almost always from the provisional price, since it is calculated having regard to assets of the company, therefore debts, credits, inventories, etc., existing at the effective date of the sale, which can only be known subsequently the effectiveness of the operation. For this purpose, one is usually drawn up patrimonial situation of sale.
For example, if the provisional price was determined, in the preliminary contract signed in May 2022, as the algebraic sum of goodwill, receivables, inventory and payables at date of the December 31, 2021 – last closed balance sheet available – and the sale of the shares took effect on 1 September 2022the final price will be calculated on the basis of assets as at 1 September 2022:
- which will surely be different – usually excluding thegoodwill which remains “fixed” in the amount – with respect to the asset values taken as a reference for the provisional price;
- which will be available only once the patrimonial situation on that date, therefore, at least a couple of months after the effective date of the sale.
It is likely that, where the revaluation is temporally subsequent to the determination of the final price, thefiscal efficiency of the transaction as a whole can reasonably be maximized.