The fate of debts and receivables in the company voluntarily wiped out

A recent ruling of the Court of Rome stated that in case of voluntary winding-up of a company carried out during a proceeding introduced by the same company, it is presumed that this one has tacitly waived the claim relating to the receivable, albeit uncertain and illiquid, for the determination of which the liquidator did not take action, preferring to conclude the company's extinction proceedings; this presumption implies that no phenomenon of succession will arise in the "sub iudice" claim, with the consequent exclusion of the legitimacy of the shareholders of the extinct company.

A recent ruling of the Court of Rome (decree of 8 June 2018) provides an opportunity to summarise some key events related to the voluntary termination of the company structure.

In fact, with this ruling, the Judge rejected the application for the provisional enforceability of an injunction, requested by the company while waiting to be removed from the Register of Companies.

The question arises spontaneously: what has become of social credit? But above all: what did not work in the "succession passage" as a consequence of the winding-up of the company?

In this regard, it should be noted that Article 2495, paragraph 2, of the Italian Civil Code, as amended by Article 4 of Legislative Decree No. 6 of 2003, links the immediate extinction of capital companies to the cancellation from the Register of Enterprises.

In this context, the new legislation has identified a precise date for the extinction of the company's share capital, namely its removal from the Register of Enterprises; The same rule also appeared to apply to the voluntary removal of partnerships from the register.

Turning now to the consequences that may derive from the cancellation in relation to the relationships of the company that has been terminated, with particular reference to the debtor relationships, it is noted that, with respect to the same, there is a 'phenomenon of succession': the shareholders take over the mandatory relationships of the entity now extinguished in the same way as the heirs take over the debts of the deceased.

Obviously, the limit of liability of the partners will depend on the type of social relationship chosen; and so, you will have an intra vires liability in limited liability companies, while you will have an ultra vires liability in partnerships.

When examining the issue of "asset" relationships, i.e. the claims of the cancelled company, a distinction must be made between

• (i) mere claims,
• (ii) disputed and illiquid claims and, finally,
• (iii) certain and liquid claims, as well as movable and immovable property.

In this sense, according to a well-established guideline of the Italian Supreme Court (i.e. Cassazioine cf. Cass., Sez. Un., no. 6070, 6071 and 6072 of 2013), the shareholders do not succeed in the mere claims, which must be considered waived at the time of the cancellation of the company.

The same conclusions were reached with regard to the disputed and illiquid claims, where no mention was made of them, nor were they "allocated" in the final liquidation balance sheet. Therefore, these receivables are to be considered as waived if the cancellation of the company has taken place without the completion, by the liquidators, of the further activity necessary to make them enterable in the financial statements.

As regards, instead, certain and liquid claims, other movable or immovable assets which, if they had been known or in any case not neglected at the time of liquidation, would have been included in the balance sheet, the judgements of legitimacy sanction in respect of the same a full phenomenon of inheritance on the part of the shareholders, under the system of joint ownership or undivided communion.

The contents of such article have a mere informative value and does not constitute a legal opinion.

For any further information please contact Michele Cespa.