Legislative Decree 36/2021, published in the Official Gazette no. 67 of 18.03.2021, the effects of which will take effect from 1 January.decisively innovates the discipline of amateur sports capital companies ruled so far byArticle 90 of Law 289/2002which will be repealed with the deployment of the effects of the new decree.
While the possibility of create sports clubs for peopleplanned today in the official text, it probably will be deleted with the entry into force of a corrective decree that is being approved (according to the first rumors), the news that most characterizes the new anonymous sports club, provided especially in sections 3 and 4 of article 8, is also will be confirmed by news about to be released.
Creating a uniform parallelism with what has already been reportedArticle 3, paragraph 3, Legislative Decree 112/2017 in the field of social enterprisethe possibility of allocating less than fifty percent of the profits for SSDs is foreseen “and annual operating surpluses, after deducting accrued losses in previous years. “:
- with free increase of the subscribed capital and disbursed by the shareholders within the limits of the Istat index of increase in consumer prices in the year in which the profits occurred
- in distributioneven through the issuance of financial instruments, dividends to shareholders in no case exceeding the maximum interest on interest-bearing postal obligations, increased by two and a half points with respect to the capital actually disbursed.
The possibility of the repayment to the shareholder of the capital actually disbursed and eventually revalued or increased within the limits indicated above.
By law, it confirms what the Tax Agency, by way of interpretation, had already indicated in its own circular 18/2018, that is, that for the Ssd only the provisions of the civil code are valid and, therefore, unlike associations, they are not obliged to comply with the statutory principles of democracy and equal rights among all members..
However, it is expected (Article 7, paragraph 1, point. b) that thecorporate purpose make specific reference to the exercise “on a stable, main street the organization and management of amateur sports activities, including training, teaching, preparation and attendance at amateur sports. ”
Any other activity (Article 9) can only be carried out as long as the statute allows it and that they have secondary and instrumental character with regard to institutional activities and are strictly linked to them within the limits of a issue an interministerial decree (remember that the same principle applies to the reform of the Third Sector and in this context the decree, already issued, provides that Income from various activities may not exceed thirty percent of total income of the institution or al sixty-six percent of the costs).
The indication, already present in the heading of the article, that these revenues must be secondary and instrumental as well as the connection relationship that the standard indicates as mandatory.
We look forward to this prediction does not exclude clearly unconnected income (Think, for example, of an SSD that run a gym with a beauty department) and that the boundary line between “different” activities allowed and “different” activities. not allowed it will be drawn exclusively in terms quantities.
It seems necessary to verify another step. The current provision of section 18 of the aforementioned article 90, relative corporate purposeremember the “organization of amateur sports activities, including didactic activities of initiation, updating and improvement in sports activities “.
The decree introduces the new term “management” (“organization and management of amateur sports activities “. This would lead to the belief that SSDs that were limited, for example, to managing a sports facility by “renting” the equipped spaces to different users but without directly managing activities recognized as sports (the reference could be to those gyms where only motor activities are performed) and legitimate.
Notwithstanding the foregoing, the prohibition of indirect distribution of profits. For the definition of this case is done express reference to the regulation contained in article 3, sections 2 and 2a, of Legislative Decree 112/2017..
Is considered indirect distribution of profits prohibited:
- payment to members of corporate clearing-house bodies “individual disproportionate to the activity carried out, the responsibilities assumed and the specific competencies“,
- payments to employees i ai professionals, if it is greater than forty percent compared to what is expected for the same degrees by collective agreements,
- the remuneration of financial instruments above two points with respect to the maximum limit set for the distribution of dividends,
- the purchase of goods or services at prices above their normal value or on more favorable terms than market conditions.