- the value of the stake sold is negative or near-zero (in the case at hand, company equity was negative); and
- the seller has a specific interest (also a non-economic interest) in transferring the stake other than payment of the price (e.g., the purchaser is taking on the seller’s debts and bringing the company out of liquidation).
According to the court, when the above requirements are met, the transaction shall not be considered a donation from the seller to the purchaser but instead shall be governed under a purchase and sale agreement. The same principle applies to the transfer of distressed businesses (aziende) or business units (rami di aziende), where it is common practice for a third party to purchase the business for a symbolic price for the purpose of restructuring the business or releasing the seller from the debts incurred by the business.
Finally, the Court of Rome emphasized that the parties agreed upon an earn-out clause of the price equal to 50% of the value of any assets remaining after the company’s liquidation. However, the court did not consider this a requirement for the lawfulness of the sale for a symbolic price.
The judgment of the Court of Rome is available online on legal databases and in journals requiring a subscription.
