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Italy – Registration Tax on Share Pledges

​Pursuant to Article 43(f) of Presidential Decree no. 131/1986, the basis for registration tax on deeds of pledge guaranteeing third parties’ obligations is represented by the guaranteed amount, or, if the collateral consists of money or securities, by the value of the pledged asset, if lower than that of the guaranteed obligations.

Pledges granted by the debtor itself to secure its own obligations only, on the contrary, are subject to a fixed registration tax of Euro 200.

According to the Italian Supreme Court decisions n. 9377 and n. 9378 of March 22nd, 2022, the notion of “securities”, as referred to in Article 43(f) of Presidential Decree no. 131/1986, does not include shares in limited liability companies (“società a responsabilità limitata”) or interests in partnerships (“società di persone”), since they are not comparable to either debt securities or money. It follows that, in case of a pledge on such kind of shares/interests, the taxable amount is determined not by reason of their par value, but according to the general rule, i.e. by reason of the amount of the guaranteed obligations.

Such rulings are in line with similar decisions of the Milan and Rome Revenue Agencies of 2016.

The Italian Supreme Court further specifies that the notion of “securities” is referable to strictu sensu credit securities (assisted by the rules of issue, incorporation and circulation set forth in articles 1992 et seq. of the Italian Civil Code), securities representing goods (in which the value refers to the goods represented, pursuant to article 1996 of the Italian Civil Code), and securities or financial products that grant the holder with a credit towards an authorised issuer (such as public debt securities).

The Italian Supreme Court’s decisions lend themselves to various forms of criticism. If, in fact, the obvious purpose of referring to the lower value of “pledged securities or sums” is to lighten the tax burden on a pledge of assets with a market value that is easy to ascertain, what difference can there be between shares in an limited liability companies (“società a responsabilità limitata”) and shares in unlisted joint-stock corporations (“società per azioni”)?

In practice, if the financing is not subject to substitute tax (“imposta sostitutiva”), financing transactions involving a pledge on shares of a limited liability company (“società a responsabilità limitata”) not granted by the debtor will continue to induce the parties to prefer a prior conversion of the limited liability company into a joint-stock corporation (“società per azioni”), especially since a pledge over shares of a joint-stock corporation (unlike a pledge over shares of a limited liability company) does not require registration in order to be validly constituted.  

DISCLAIMER: the content of this news is for informational purposes only and neither represents, nor can be construed as a legal opinion