the resignation represents an increase in share capital

The Tax Agency has published the answer to sentence no. 333, of June 21, 2022, regarding the waiver of loans related to financial leasing.

Article 19, section 2, of Legislative Decree no. 73 of 2021, coordinated with the Conversion Act of July 23, 2021, n. 106, the aforementioned Sostegni-bis Decree, provides that in the tax period subsequent to the current one at 31 December 2020, for the increase in share capital with respect to the existing one at the end of the previous tax period, the b) of section 287 of article 1 of law no. 160, equals 15 percent.

In the tax period after the current one at 31 December 2020, increases in shareholders’ equity are recognized from the first day of the tax period. For the purposes of this paragraph, the increase in share capital is recognized for a maximum amount of 5 million euros, regardless of the amount of equity resulting from the financial statements.

With Disposition of the director of the Agency of Property, prot. 238235/2021 published on September 17, 2021, the modalities, the terms of presentation and the content of the communication for the use of the deduction have been defined.

For the purposes of determining the share capital increase, article 5 of the ACE Decree provides that the cash contributions paid by shareholders or participants as well as those paid to acquire the qualification of shareholders or participants are recognized as positive elements. ; The unconditional waiver by the shareholders of the right to a refund of the company’s credits is considered a cash contribution.

Section 5 of the same article provides that increases arising from cash contributions are relevant from the date of payment; the derivatives of the waiver of credits from the date of the waiver.

The explanatory report of the ACE Decree specified that, although not expressly modified by the decree, the clarifications provided for in the report in the Decree of the Minister of Economy and Finance of 14 March 2012 remain in force.

In relation to the unconditional waiver by shareholders of the right to repay the loans to the company, it is specified that only the waivers of loans arising from previous cash loans have the nature of a cash contribution.

Article 10 of the ACE Decree of 14 March 2012 also contains some anti-circumvention provisions aimed at preventing, in the event of a single capital injection, several ACE grants from benefiting from the grant. subjects belonging to the same group.

In particular, Article 10 (3) (e) provides that the change in the ACE has no effect up to the amount of the increase in respect of those resulting from the annual accounts for the current financial year. December 31, 2010, of The financing credits to the subjects referred to in section 1.

The explanatory memorandum of the decree specified that only the waivers of the repayment of loans of a financial nature, ie those derived from previous cash loans, were relevant. This hypothesis was later confirmed by the Agency with Circular no. 12 / E of 2014. Subsequently, in circular no. 21 / E of 2015, regarding the irrelevance of the origin of the credits in relation to the waivers for the capitalization of the companies, it was reiterated that it is considered relevant, for the purposes of the ACE, the contribution that originates from the waiver of credits. , only in the event that the waived credit is derived from a previous cash loan.

This is in order to prevent the ACE discipline from being exposed to easy arbitration aimed at transforming in-kind contributions into capital contributions.

The legislator has therefore excluded from the increases in equity the so-called operating credits or those forms of financing that arise in relation to normal commercial operations when the suppliers of goods, raw materials, services, etc. grant a deferred payment. This is because it is a form of credit that is not intended to grant a real loan, as the loan is determined by the form of payment of a purchase transaction.

In this case, we ask you to know how relevant for the purposes of ACE the waiver of loans made by its shareholders, in relation to loans related to finance leases.

Loans related to finance leases are, in principle, among those financial loans, the waiver of which involves an increase in equity, in accordance with the new ACE Decree.

It is inferred that the operation of waiver of credits by shareholders falls within the scope of application of the provisions of article 19, section 2, of the decree law of 25 May 2021, n. 73 (Support Decree-bis), since the operation was carried out by the shareholder in the tax period following the current one at 31 December 2020.

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