1. OVERVIEW OF THE NEW CUSTOMS TARIFFS
By order issued by the President of the …
The decision at issue, in line with the interpretative orientation introduced by the Supreme Court in a number of rulings in 2016[1], declared the bankruptcy of the de facto company set up between a corporation, already declared bankrupt, and the individual owner of a sole proprietorship, who was also a partner and director of the same bankrupt corporation. As a result of the bankruptcy of the de facto company, the entrepreneur was also subject to insolvency proceedings as a partner with unlimited liability.
In particular, the bankruptcy petition was filed by the receiver of the company T. S.r.l. (limited liability company) who, as basis of the petition, argued that, starting from 2015, a de facto company had been set up between the company already declared bankrupt and the sole proprietorship T. of O.Q. for the joint exercise of the activity already carried out by the S.r.l. - mainly with local authorities – which meanwhile could no longer operate because it was denied the issuance of the DURC (Unified Tax Compliance Certificate), necessary to carry out such activity.
There are numerous elements, including indicative evidence, which have made it possible to identify in this case the existence of a corporate relationship between the bankrupt company and the individual entrepreneur, partner and director of the same.
First of all, the identity of the corporate name of the sole proprietorship and of the S.r.l., as well as the partial correspondence of the corporate objects of the two companies: indeed, both of them were engaged in the marketing of sports facilities, although the S.r.l. had a broader corporate object, which extended also to production.
In addition, the companies had their registered office at the same address, which - according to the Court - was evidence of the intention to show the cooperation commitment. This intention was also confirmed by the statements made by O.Q. in relation to the continuation, by the sole proprietorship, of the orders already placed with T. S.r.l. by the local authorities, underlining the reasons that led to keeping the company alive, namely preservation of its goodwill and retention of its customers and, at the same time, to setting up the sole proprietorship in order to complete the orders already accepted but which could no longer be completed as a result of T. S.r.l.’s bankruptcy.
Similar evidentiary value was attributed to the documentation showing that the goods were supplied by T. S.r.l. to the sole proprietorship for no consideration and, hence, as a contribution made by one of the partners to the joint performance of the activity. In addition, customers were asked to pay the consideration for the activities carried out by the sole proprietorship not to the current account in the proprietorship’s name, but to T. S.r.l..
These are, clearly, all elements that in themselves demonstrate the existence of a so-called de facto supercompany, whose establishment - again in the opinion of the seized Court - was unequivocally declared by O.Q. himself with the admission that the activity carried out by the sole proprietorship was necessary to repay the debts incurred by T. S.r.l..
In order for a corporation to hold an interest in a partnership, where the holding company is an S.p.A. (company limited by shares), Article 2361, paragraph 2, of the Italian Civil Code requires the prior resolution of the shareholders’ meeting and “specific information in the explanatory note to the financial statements”.
By virtue of the explicit mention contained in the implementing provisions (Article 111 duodecies of the implementing provisions), also an S.r.l. may acquire an interest in a partnership, but it remains to be established whether, in the absence of a specific mandatory rule, the acquisition falls within the prerogatives of the managing body or is subject to a decision of the shareholders, applying by analogy Article 2361, paragraph 2, of the Italian Civil Code or on the basis of the exclusive competence established by Article 2479, paragraph 2, No. 5, of the Italian Civil Code.
On this point, the judgment at issue merely states that, in the case of a de facto company, compliance with the rules referred to above would not be required, at least in those cases, such as the present one, where the acquisition of an interest does not entail a significant change in the company’s corporate object.
The rapidity of the argumentative passage is due to the Court of Bergamo’s reference to two precedents of the Supreme Court, which dealt with the issue in greater detail. Both rulings confirm the purely internal relevance of the failure to comply with the provisions of law on the subject: the absence of a prior shareholders’ meeting resolution has no demolition effect on the company in which an interest is held and on the business activities performed by the same in the medium term; and this also applies to S.p.A. for which it is expressly required, since it is necessary instead to emphasize the principle of effectiveness and the principle of stability of the company and its contractual relationships with third parties.
In the decision under consideration, the establishment of a de facto supercompany is almost taken for granted. It is, however, an argumentative aspect of great importance dealt with by making reference to the two Supreme Court rulings mentioned above, which are based on the assumption that the two specific cases of a secret company - expressly contemplated by paragraph 5 of Article 147 of the Italian Bankruptcy Law - and of a de facto company, are not perfectly matching and that, in any case, the answer to the question is whether the actual implementation of an association relationship characterized by the requirements prescribed by Article 2247 of the Italian Civil Code, is suitable to imply the application of the legislation on enterprises and, in case of crisis, of insolvency proceedings.
Article 147, paragraph 1, of the Italian Bankruptcy Law establishes by extension the bankruptcy of shareholders with unlimited liability, “even if they are not natural persons”, regardless of the assessment of their personal insolvency, thus implying the transfer to the effective performance of a commercial business activity, which, according to Article 1, of the Italian Bankruptcy Law, is the objective requirement for bankruptcy. Indeed, what is relevant is the de facto performance of the business activity in a collective form, even when the organisational rules set forth by Article 2361, paragraph 2, of the Italian Civil Code and/or by Article 2479, paragraph 2, no. 5, of the Italian Civil Code have been infringed.
Indeed, the predominant part of the judgment in question is, as we have just seen, dedicated to the factual verification of the elements which would suggest the existence of a de facto supercompany in the case in point.
In its search for the legislative reference to which the bankruptcy of the supercompany should be linked, the Court of Bergamo has made it clear that the case does not strictly fall within the scope of Article. 147, paragraph 5, of the Italian Bankruptcy Law since it is a question of putting into bankruptcy not a secret company between the apparent individual entrepreneur, already declared bankrupt on his own, and other undisclosed shareholders, but rather “the corporate body formed by a bankrupt corporation and another entity”, with the clarification that, however, said rule would be applicable by extension because of the identical ratio between the two hypotheses.
The scope of application of the provision referred to above has also been clarified by the Constitutional Court [2], which deemed it possible to read extensively the provision in question, despite its exceptional character, in accordance with the fundamental principles of the legal system.
Therefore, it is not a question of extending the bankruptcy of a company that has already gone bankrupt to silent shareholders - a case already covered by Article 147, paragraph 4, of the Italian Bankruptcy Law - but of directly ascertaining the existence of an entrepreneurial entity other than the bankrupt one and the existence for that entity of the conditions set out in Article 1 of the Italian Bankruptcy Law.
On the basis of the foregoing, the Court of Bergamo considered the above decision elements as serious, precise and concurrent with each other, with respect to the carrying out of a joint activity by T. S.r.l. and the sole proprietorship of the same name and therefore with respect to the existence of a de facto supercompany between said parties.
As a consequence, the Court of Bergamo declared the bankruptcy of the de facto supercompany and of its partner with unlimited liability, with no need to ascertain the specific insolvency of the latter.
In conclusion, it appears that the extensive application of the rule on the secret company is not necessary for the declaration of bankruptcy of the de facto supercompany - since this is achieved directly on the basis of Article 147, paragraph 1, of the Italian Bankruptcy Law - nor to reflect the subsequent bankruptcy on the shareholders whose existence is discovered at a later date - which takes place on the basis of the next paragraph of the aforementioned provision, Article 147, paragraph 4, of the Italian Bankruptcy Law - but is the instrument for the equal treatment of homogeneous situations with regard to being put into bankruptcy, even in the absence of a manifest corporate relationship.
This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with.
For further information please contact your counsel or send an email to the following address: corporate.commercial@advant-nctm.com
[1] See Cass. 21 January 2016, No. 1095; Cass. 20 May 2016, No. 10507.
[2] Constitutional Court, No. 255 of 6 December 2017.
