Taxes and penalties chase fictitious transfers of companies abroad

The Agency thus brought an appeal before the Court of Cassation, complaining, among other grounds, of the misapplication of the rules governing liability in the event of liquidation and termination of the company referred to in article 2495 civil code, 36 Presidential Decree 602/73, as well as in the matter of sanctions for de facto administrators (art. 7 D.L 269/2003).

The judges of legitimacy upheld this objection, noting first of all that, according to the Office, the transfer of the registered office abroad was non-existent, since the actual centre of management and control and the company's activities had remained in Italy. That is, it had been a fictitious transfer abroad.

For the Court of Cassation, the cancellation of a company from the Italian company register, which did not occur upon completion of liquidation or cessation proceedings, but due to transfer abroad, presupposes the continuation of the activity in another State.

In such a hypothesis, the provision envisaged for extinction (Article 2495 of the Civil Code) is not applicable, nor is the subsidiary liability of directors, liquidators and shareholders (Article 36 of Presidential Decree 602/73).

However, if the transfer is fictitious, lacking the actual continuation of the activity, the court must verify the shifting of taxable income to the person 'managing' the company.

In this context, moreover, the courts of legitimacy have clarified that for the purposes of liability, it is irrelevant whether one is a formal or de facto director, since it is necessary to ascertain whether the third party to the entity behaves as one who autonomously manages and directs the resources of the company and also, where appropriate, independently of the latter's interests.

For this reason, since the entity represents a mere screen to evade the consequences of the tax offence, the penalties are also borne by the natural person committing the offence.