"June 17, 2016-financial NEWS: reducing optional for losses in order to protect shareholders and creditors"
28 OIC accounting standard on shareholders ' equity, affirms the existence of two types of reduction of share capital due to losses, a mandatory and the other optional. In essence the compulsory reduction you have in the event that the losses decrease:
- the capital by over a third and this situation persists even in the next financial year, in accordance with articles 2446 and 2482-bis Italian civil code;
- the capital of more than one-third and the latter is reduced below the legal minimum, as enshrined in articles 2447 and 2482-ter of the Italian civil code.
For "loss of over a third of the capital" will refer to the summation of losses carried back and loss for the period, net of reserves in equity. As can be seen from the same optional reduction attributed to it comes at a time when the losses are less than third of the capital, therefore, this category should be included reductions consist of amounts such that one cannot ascribe the civil cases mentioned above.
To determine the exact amount, considering the losses net of reserves, it is necessary that you follow a specific reasoning, you should decide which reserves use first, given the possible constraints in relation to the availability of those resources. If the total loss coverage requires the use of the reserves entered, it must be held that the latter can be characterized by a varying degree of constraint, then it is correct proceed initially with those in which the constraint is less rigid. These clarifications as regards the primary use existing stocks are critical as regards the protection of creditors. The judgment of the Court of Appeal of Naples of 19.06.2008, stated on the binding nature of the rule treated as "its ratio lies in the fact that the different voices of equity, since they are increasingly subject to creditors ' guarantee, can and must be the decisions of the partners to undermine them in the order established, it being precluded from encumbering the losses on the net no longer bound until there are parts of the heritage less constrained or unconstrained ". It is stated that:
- social capital has a degree of unavailability greater than that relating to the legal reserve;
- statutory reserves and the optional ones are freely available.
Also in the same optional reduction for losses less than third remain, in the absence of civil law, similar provisions, as is apparent from the decision of the Supreme Court No. 543 of 2006, in which he establishes his nature, namely that takes the form:
- an operation designed to affect the social order and thereby to interfere in the subjective sphere of members, in particular their right to distributions of profits;
- an operation that affects the rights of third parties, especially the social creditors, whose reasons are guaranteed by social capital.
Indeed, although it is not specifically covered by articles 2446, and 2447 of the civil code, shall also be carried out according to a predefined template that provides adequate guarantees of protection to both categories of subjects mentioned, with the adjustments necessitated by the discretion of the operation, connected to the minor loss. Finally resolved that the administrator although it is not obliged to convene without delay the Assembly, it is still constrained to inform members of the actual company's balance sheet, using a balance sheet referring to a date close to that of the meeting. Note that this statement may be replaced by the last financial statements, provided that, with respect to the date of the meeting, remains the temporal continuity, with regard to ensuring adequate provision of information to members and are not significant events that have taken place in the meantime.
by Sandro Cerato and Clare Raghuram