Company

It is permissible to repay shareholders’ capital contributions if there is an actual claim

The Court of Cassation sets out the criteria for assessing whether resources are being diverted from the company’s assets. Preferential bankruptcy may be challenged in the case of capital contributions

by Laura Ambrosi and Antonio Iorio

25 August 2026

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3' min read

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Versione italiana

Key points

Financing or capital contribution
Actual payment and its nature
A refund does not constitute misappropriation
Assessments

3' min read

Translated by AI

Versione italiana

The repayment to a shareholder of sums previously paid into the company, in the run-up to insolvency, requires particular attention due to its potential criminal law implications. The issue arises particularly in companies with a limited shareholder base, where the shareholder is also a director and can therefore directly access the company’s accounts.

It is therefore crucial to understand when a withdrawal made by a director-shareholder constitutes the repayment of a debt actually owed by the company and when, on the other hand, it represents a diversion of resources from the company’s assets.

The recent judgement No. 31401/2026 of the Court of Cassation sets out some very useful practical guidelines.

According to the judges of the Court of Cassation, it is necessary, first and foremost, to verify whether the payment in question was in fact made and to determine its nature, as this classification gives rise to different consequences under criminal law.

Financing or capital contribution

Not all payments made by shareholders give rise to a right to a refund. A distinction must be drawn between genuine loans, which give rise to a claim by the shareholder against the company, and payments made to the company’s capital, in respect of which there is no ordinary claim for repayment that can be enforced during the company’s existence.

This distinction takes on immediate criminal significance in the event of a crisis.

If a shareholder withdraws funds in repayment of a capital contribution, such repayment may constitute a form of misappropriation, precisely because the shareholder does not have an enforceable claim that could justify the withdrawal of those funds from the company’s assets.

Conversely, where it is proven that a genuine capital contribution has been made, the repayment satisfies a claim by the shareholder. In such a case, the condition for automatically treating the payment as an unauthorised withdrawal of company assets no longer applies.

In this regard, case law – provided, of course, that the other conditions are met – tends to classify such conduct as preferential treatment in bankruptcy proceedings.

The problem becomes even more apparent when the creditor receiving the payment is the same person as the director authorising the payment: the individual who is aware of the company’s financial situation uses the available resources to settle their own claim, whilst the other creditors are left unsatisfied.

Clearly, the mere term ‘shareholder loans’ is not sufficient. Whilst the mere presence in the balance sheet of an item entitled ‘payables to shareholders for loans’ is certainly a significant factor, classifying the transaction requires a reconstruction of the underlying relationship.

Actual payment and its nature

In the aforementioned judgement No. 31401/2026, the Court of Cassation emphasises the need to verify in practice whether the payment was actually made and what its nature is.

In practical terms, the investigation should focus on the financial traceability of the payment, its recording in the accounts, the available company documentation, the continued inclusion of the debt in subsequent financial statements and, more generally, the consistency between the accounting presentation and the actual economic relationship between the shareholder and the company.

A return does not constitute misappropriation

A shareholder’s right to a refund precludes the payment from being regarded, on that ground alone, as a misappropriation.

But, of course, this circumstance does not automatically render the repayment irrelevant for criminal law purposes. Essentially, it must first be established whether the shareholder is in fact a creditor of the company; subsequently, it must be determined whether the manner and timing of the payment could be considered preferential.

The checks

Where sums are repaid to shareholders, particularly when the company is experiencing financial difficulties, it is advisable to establish at least four key points:

1) the source of the funds;

2) payment reference;

3) proof of the claim;

4) the company’s situation at the time of the return.

The availability of bank transfers, account statements, financial statements, general ledgers, any resolutions or agreements, and other documentation relating to the loan may prove decisive.

Similarly, the amount of the repayment must be assessed in relation to the outstanding debt, the company’s financial position and the existence of other creditors who have not been repaid.

The initial classification and documentation of shareholders’ capital contributions thus take on a role that extends well beyond the realm of company law and accounting; and, in the event of subsequent insolvency, they may determine the distinction between a payment based on an actual claim, preferential treatment and outright misappropriation of assets.