{"id":2040,"date":"2026-06-16T11:25:55","date_gmt":"2026-06-16T09:25:55","guid":{"rendered":"https:\/\/studiobampo.it\/?p=2040"},"modified":"2026-06-16T13:30:54","modified_gmt":"2026-06-16T11:30:54","slug":"conferimento-dazienda-e-regime-pex-i-nuovi-dubbi-del-2026","status":"publish","type":"post","link":"https:\/\/studiobampo.it\/en\/conferimento-dazienda-e-regime-pex-i-nuovi-dubbi-del-2026\/","title":{"rendered":"Business transfer and the PEX regime - new uncertainties."},"content":{"rendered":"

Business transfer and the PEX regime: new uncertainties in 2026 regarding reorganisations involving a newco<\/h3>\n

Between an AIDC Code of Conduct, a recent ruling by the Court of Cassation and a new stance from the Revenue Agency, the business transfer plus tax-exempt<\/strong> disposal of shareholdings<\/strong> scheme must be handled with greater care. A summary of the three issues to consider before reorganising.<\/em><\/p>\n

The 'spin-off<\/strong>' of a business into a newly formed company (the so-called newco<\/em>), followed by the disposal of the related shareholdings, is one of the most commonly used transactions in corporate reorganisations<\/strong><\/a>.<\/p>\n

The reason is well known: the business transfer is tax-neutral under Article 176 of the TUIR, and the subsequent sale of the shareholding may benefit from the participation exemption<\/strong> (PEX, Article 87 of the TUIR), which exempts 95% of the capital gain from taxation, leaving only 5% taxable.<\/p>\n

However, during 2026, three developments \u2013 in legal doctrine, case law and practice \u2013 have emerged that redefine the safety margins of the transaction. We summarise them from an operational perspective.<\/p>\n

1. The holding period: it is the company\u2019s seniority that counts, not that of individual assets<\/b><\/span><\/span><\/p>\n

To apply the PEX, the shareholding<\/strong> must have been held for at least twelve months<\/strong>>. When the shareholding arises from a tax-neutral business transfer, the length of ownership \u2018retroactively\u2019 applies to that of the transferred business (Article 176, paragraph 4, of the TUIR).<\/p>\n

In Practice Note No. 235 of 2026, the AIDC reiterated that what matters is the ownership of the business as a whole, without taking into account the circumstances of the individual assets comprising it<\/p>\n

This position contrasts with a more restrictive approach taken by the Court of Cassation (Order No. 8235 of 2023), which instead emphasised the seniority of individual assets: an issue not to be underestimated when the business includes recently acquired assets<\/strong>.<\/p>\n

2. The commercial nature of the newco: the start-up phase is not sufficient<\/strong><\/span><\/p>\n

The PEX requires the investee company to carry out an effective commercial activity<\/strong>. In judgment no. 14530 of 16 May 2026, the Court of Cassation clarified that the mere preparatory or start-up phase, if not yet concluded at the time of the transfer of shares, does not satisfy the commerciality requirement<\/strong>: without an activity already effectively underway, the capital gain remains fully taxable<\/strong>.<\/p>\n

The previous order No. 14800 of 2025 had specified, in broader terms, that a business property under construction does not in itself preclude commercial activity, provided that the business is subsequently actually carried out.<\/p>\n

In practice: it must be verified that, at the date of sale, the newco is already operating, and is not merely \u2018holding\u2019 the business.<\/p>\n

3. The \u2018mixed\u2019 share: caution regarding proportional PEX<\/strong><\/span><\/p>\n

It is common practice to first set up the newco with initial capital and only subsequently increase its capital through the transfer of the business.<\/p>\n

In this way, the final shareholding consists of two parts: one \u2018arising\u2019 from the incorporation<\/strong> and one from the transfer<\/strong>. Whilst the latter inherits the business\u2019s seniority and fixed-asset status, the former must be assessed independently.<\/p>\n

According to a recently adopted interpretation by the Italian Revenue Agency, the exemption should be applied on a proportional basis<\/strong>, i.e. limited solely to the share meeting the requirements, with the consequence that part of the capital gain could be fully taxed<\/strong>.<\/p>\n

This interpretation is not yet established, but it is sufficient to warrant caution regarding the timing of transactions.<\/p>\n

What to do in practice<\/span><\/strong><\/p>\n