In the case of a demerger, the tax rule does not avoid bankruptcy

The tax rule does not shield from the challenge of bankruptcy in the case of a corporate spinoff. The Supreme Court of Cassation, in its ruling 246 of 2026, clarifies that Article 173 of the Consolidated Income Tax Law (Tuir), according to which the tax obligations of the demerged company, referring to tax periods prior to the date from which the extraordinary transaction takes effect, are fulfilled in the case of partial demerger by the demerged company itself or transferred, in the case of total demerger, to the beneficiary company identified in the demerger deed, does not avoid conviction for having caused disruption. Nor does it weigh against the fact that the only creditor is the tax authorities.

Rejected as unfounded the ground of appeal, before the sentence imposed on appeal, with which the defence had argued that, after the demerger, the beneficiary company resulting from the transaction would in any case have remained unlimitedly liable for the entire debt toEquitalia, the only creditor.

For the Court of Cassation, however, 'the application of the criminal rules cannot be paralysed by the abstract legislative provision of patrimonial liability even where the fulfilment of the consequent civil law obligations would have the effect of eliminating the damage caused by the crime'. In fact, the ruling emphasises, these are different profiles: the assessment on the existence of the offence must be made in concrete terms, taking into account the factual circumstances that may have relevance with respect to the qualification of the splitting operation as fraudulent and on its suitability in rendering the compulsory collection procedure ineffective.

Moreover, continues the Court of Cassation, it must be recalled that any conduct of the director which causes a depletion of the assets of the enterprise or which is even only potentially capable of endangering the creditors' reasons must be considered a distractive act.

It is then irrelevant that Equitalia was the sole creditor. In fact, the bankrupt company, now deprived of assets, entirely devolved to the beneficiary company, was no longer in a position to meet the demands of the Fiscal Authority. Therefore, also in this case, the defence's reference to Article 173 is misleading, because in the face of the bankrupt company's incapacity Equitalia could potentially be forced to satisfy itself on the corporate assets of the beneficiary company on which other creditors could also make similar claims.