News on the reimbursement of the shareholder loan for spas

2 Dicembre 2015
According to a recent ruling of the Italian Supreme Court (sentenza della Corte di Cassazione no. 14056/15the provision according to which the reimbursement of shareholder loans is subordinated to the payment of any other creditors shall apply also to companies incorporated in the form of a “società per azioni” or “SPA and not only to companies incorporated in the form of a “società a responsabilità limitata” or “SRL” as currently provided by the Italian civil code. In particular, the Supreme Court clarifies that this principle shall apply to SPAs with a small number of quotaholders or with family-based ownership (società per azioni chiusa).

Specifically, according to regulation on SRLs (article 2467 of the Italian civil code), the repayment of quotaholders’ loans to the company shall be made only after the repayment of all the other creditors of the company. If a SRL is declared insolvent within one year of the date of reimbursement of a quotaholders’ loan, such reimbursement shall be returned to the company. For the purposes of this provision, a quotaholders’ loan means any type of cash injection made in any form into the company if one of the following requirements is met: (i) the company’s indebtedness is too high with respect to the net assets of the company and in view of its corporate purpose or (ii) it would have been reasonable to make an equity contribution rather than a loan considering the financial status of the company.

Since the Italian civil code does not provide any similar provisions within the regulation of SPAs, such a principle was considered inapplicable to SPAs until the above-mentioned ruling.

However, the Supreme Court clarified that this principle shall apply to companies regardless of their corporate form on the assumption that such companies are similar in terms of their size and structure of ownership.  Indeed, the above-mentioned principle is aimed at avoiding an undercapitalization of the company that may be prejudicial to its creditors due to the preference of the stakeholders for financing the company in the form of a loan rather than an equity contribution.

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