A share capital increase paid up by setting off receivables owed to shareholders is subject to registration tax at a rate of 0.5%, rather than merely to the fixed registration tax of EUR 200. This principle was established by the Italian Supreme Court in Order No. 25106/2026.
The case concerned a company which, after reducing its share capital to zero to absorb losses, simultaneously resolved to restore it. The resulting capital increase was paid up by setting off certain, liquid and due receivables held by the shareholders against the company.
The notary had applied the fixed registration tax of EUR 200 applicable to cash capital increases. The Italian Revenue Agency, by contrast, subjected the set-off to the proportional rate of 0.5%, pursuant to Article 6 of the Tariff, Part I, annexed to Presidential Decree No. 131/1986.
The Supreme Court upheld the position taken by the Tax Authorities, drawing a distinction between:
- the share capital increase, which constitutes an expression of the company’s shareholders’ meeting resolutions; and
- the set-off, which is attributable to the individual shareholder and remains legally distinct from the corporate resolution, even where it serves to implement the capital increase.
Accordingly, the functional connection between the two transactions does not allow the arrangement as a whole to benefit from the more favourable tax treatment applicable to corporate acts.
The set-off referred to in the resolution constitutes a separate contractual provision—or, in any event, a transaction disclosed in the registered instrument—and is therefore subject to proportional registration tax at a rate of 0.5% on the amount set off.
