Italian Revenue Agency – Ruling No. 143 of 13 July 2026: special rights reserved to the transferor deprive the control transferred to the child of its substance, thereby preventing the application of the tax exemption under Article 3(4-ter) of the Italian Inheritance and Gift Tax Code.
With Ruling No. 143 of 13 July 2026, the Italian Revenue Agency denied the inheritance and gift tax exemption provided for under Article 3(4-ter) of Legislative Decree No. 346 of 31 October 1990 (the Italian Inheritance and Gift Tax Code – TUSD), as amended by Legislative Decree No. 139 of 18 September 2024.
The ruling concerned a family business transfer agreement (patto di famiglia) under Articles 768-bis et seq. of the Italian Civil Code, pursuant to which the transferor intended to transfer to his son the bare ownership of 95% of the share capital of an industrial holding company while retaining a lifetime usufruct. Through an agreement entered into under Article 2352 of the Italian Civil Code, the bare owner would have been granted the majority of the voting rights at the ordinary shareholders’ meeting.
On paper, therefore, the transaction appeared to satisfy the statutory requirement for acquiring legal control, since the exemption for interests in companies limited by shares applies only where the transferred participation enables the beneficiary to acquire control pursuant to Article 2359(1), No. 1, of the Italian Civil Code, or to strengthen an existing controlling interest.
The decisive element, however, was the company’s articles of association. The draft attached to the ruling request reserved to the transferor, as special rights pursuant to Article 2468(3) of the Italian Civil Code:
- the right to be appointed director and chairman of the board of directors of the holding company;
- the authority to represent the company and vote at the shareholders’ meetings of its subsidiaries on the appointment of management bodies and on authorisations concerning the transfer of shareholdings, businesses and trademarks;
- a consent right over transfers of shareholdings.
Furthermore, Article 11 of the draft articles required the favourable vote of 96% of the voting rights to amend the articles of association. Consequently, although holding 95% of the voting rights, the son would not have been able to remove those special rights without the transferor’s consent.
The principle affirmed by the Italian Revenue Agency is clear: because the tax exemption applies only where the transfer results in the acquisition of legal control under Article 2359(1), No. 1, of the Italian Civil Code, the exemption cannot apply where the majority voting rights transferred to the beneficiary are deprived of their substantive effectiveness.
According to the Revenue Agency, the transferor’s right to be appointed director removes one of the principal decision-making powers from the ordinary shareholders’ meeting and therefore substantially prevents the effective transfer of legal control to the son. More generally, the Agency emphasised that the mere transfer of the majority of voting rights is not sufficient; rather, the beneficiary must be capable of effectively influencing the adoption of resolutions on matters falling within the competence of the ordinary shareholders’ meeting.
The ruling expressly follows the approach previously adopted in Rulings No. 109 of 26 May 2026 and No. 115 of 4 June 2026, as well as the Italian Supreme Court’s Order No. 6616 of 19 March 2026, according to which legal control requires the power to determine the outcome of ordinary shareholders’ resolutions as a whole, rather than influence over only specific decisions.
From a practical perspective, the ruling highlights the growing importance of careful governance planning in succession planning and corporate reorganisations. Where governance mechanisms are designed to preserve the founder’s influence during a generational transition, the special rights reserved to the transferor must be carefully balanced against the rights transferred to the successor. Certain governance protections retained by the founder may jeopardise the tax exemption, particularly where they are reinforced by supermajority voting requirements exceeding the transferred shareholding or by statutory unanimity requirements.
