The Tax Authority limits the neutrality under Art. 173, para. 15-ter, of the Italian Income Tax Code (TUIR) to demergers by spin-off in favor of newly incorporated beneficiaries only, notwithstanding the new Art. 2506.1 of the Civil Code, which also admits such transaction in favor of pre-existing companies.
With ruling No. 225 of August 21, 2025, the Italian Revenue Agency denied the neutrality under Art. 173, para. 15-ter, TUIR to a demerger by spin-off towards a pre-existing beneficiary. In the specific case, the parent company “ALFA”, holding 100% of the subsidiary “BETA”, intended to transfer a real estate property to the user BETA through a spin-off; the taxpayer requested the application of the neutrality generally provided for demergers (and in particular for demergers by spin-off), referring to notarial practice and the preliminary draft of the implementing decree which, originally, expressly contemplated the spin-off towards already existing beneficiaries. The final wording of the tax provision, however, no longer expressly includes the spin-off in favor of a pre-existing company.
In the silence of the tax rule, the Agency, endorsing a restrictive interpretation, considered that para. 15-ter applies only to newly incorporated beneficiaries, also highlighting the deletion, in the final text of Legislative Decree No. 192/2024, of the reference to pre-existing companies, and concluding that the transfer to a pre-existing company does not benefit from neutrality.
The administrative position appears, however, misaligned with the updated civil law framework: the new Art. 2506.1 of the Civil Code, as rewritten by Legislative Decree No. 88/2025, in fact expressly admits the spin-off “to one or more pre-existing or newly incorporated companies,” thus creating a short circuit between civil law legitimacy and tax treatment of such transactions.
The reply provided perhaps represents a missed opportunity to resolve interpretatively the regulatory mismatch. It therefore seems desirable that the tax legislator intervenes to realign the TUIR and the Civil Code, avoiding uncertainties and operational distortions which, in fact, undermine the scope of the provision.
