"NEWS May 4, 2016-progressive transformation from snc srl: effects on shareholders"

Posted by on May 4, 2016



The transformation of "progressive" – by companies not subject to Ires in company subject, typically the transformation from Snc Srl – must be carefully considered in view of the tax status of members.

It is common ground that the reserves established with the profits made into pre transformation, already accused and taxed for transparency in shareholders, does not count toward the taxable amount in the case of their subsequent distribution, the only condition laid down by art. 170, co. 3, of the tax code, of budgeting with indication of their origin; Similarly, no tax effect will be produced by their eventual inclusion in the social capital of the Srl.

This approach, which corresponds to a fair tax, symmetry principle also applies in the case that the dividend recipient formats with earnings before transformation is a party other than the person who has taxed for transparency at the time of their realization; This principle has indeed found an explicit confirmation in the discipline of the system of fiscal transparency, both in art. 8, co. 1, D.M. April 23, 2004 and both in circular No. 49/2004.

In order for this symmetry functions, it is only required that the reserves formed with earnings before processing are entered separately in the balance sheet of the Srl; failing that, then, these reserves will be subject to the ordinary regime of taxation of surplus funds in corporate enterprises.

With regard to how we fulfill this separate indication in practice were found different thesis: from those who argue that the designation must give credit for the period of training, how many – so uncontroversial – consider enough the nature of profits (e.g.: useful reserve erstwhile Snc), and finally to those who believe enough that this detail is provided in the notes. Is more than appropriate that the separate indication is maintained at all budgets, even after the first immediately after the transformation.

The particular nature of these surplus funds, which makes them so free from any tax effect if their distribution, means that they can be regarded as not applicable the presumption of prior distribution of earnings referred to in paragraph 1 of art. 47 of the tax code. Similarly, in case of coexistence of surplus funds processing and reserves formed doors with subsequent profits, it does not seem to be working any priority order of distribution, being instead a free choice of the Assembly decide from which the formation of "fish" quantum reserves distributed to members by way of dividend.

Particular circumstances for the treatment of cd. "interim profit" i.e. the result produced in the period between the first day of the pursuit of effectiveness of the transformation and the effective date of the change; in fact, if from a fiscal point of view the progressive transformation leads to the formation of two distinct tax periods (one ante transformation, whose profit will be subject to income tax for transparency on the part of members; and the post processing, which will be subject to Ires in the company), from the point of view statements, the company maintains a single accounting period at the end of which will provide a single annual financial statements – 31/12 1/1 – duration – refers to the transformed Srl.

Well, from the annual budget will emerge a single useful statements, which contains two distinct tax components one will be referred to the tax base already taxed for transparency on shareholders. It is clear that if you don't take Bill this share of earnings, its subsequent distribution to shareholders would entail for them to double taxation: the first time as income tax in transparency; the second time, as dividing by Srl.

To avoid this unfair phenomenon, it is therefore advisable to provide in the budget for the financial year of the transformation one separate indication of taxable income produced in pre transformation so that we can distinguish by the share of income produced in the subsequent period due to Srl (and therefore subject to Ires).

Fabio Lad