Civil Sentence Sect. 5 Num. 36093 Year 2021
President: SORRENTINO FEDERICO
Rapporteur: GIUDICEPIETRO ANDREINA
Date of publication: 23/11/2021
JUDGMENT
on the appeal registered under No 23027/2015
R.G. brought by Felofin S.p.A., in the person of its
interim managing director, represented and defended by Eugenio Briguglio and Gianluca Boccalatter,
lawyers, with an address for service in Rome at Via Germanico
146, at the office of Ernesto Mocci, lawyer;
-Applicant
AGAINST
Agenzia delle Entrate, Direzione Centrale, in the
person of the Director pro tempere, represented and defended by the Avvocatura
Generale dello Stato, at which it is domiciled in Rome, via dei Portoghesi, no.
12;
-counterclaimant-
E
Agenzia delle Entrate, Direzione Provinciale di
Varese;
-intimate
against the judgment no. 2091/2015 of the
Regional Tax Commission of Lombardy, delivered on 3 February 2015, filed on 19
May 2015 and not notified.
Having read the written indictment of the
Deputy Attorney General Stefano Visonà;
Hearing the report of Cons. Andreina
Giudicepietro;
having heard the deputy attorney general
Stefano Visonà, who concluded by requesting the
dismissal of the appeal, the lawyers Eugenio Briguglio
and Francesco Fratini for the appellant company and
the lawyer for the State Gianna Galluzzo.
FACTS OF THE CASE
1. Felofin S.p.A. is appealing with four detailed grounds
against the Agenzia delle Entrate for the annulment of judgment no. 2091/2015 of the
Regional Tax Commission of Lombardy, issued on 3 February 2015, filed on 19 May
2015 and not notified, which upheld the appeal of the office, in a dispute
concerning the challenge to the notice of assessment for higher IRES and IRAP
relating to the 2007 tax year.
2. In
that year, the majority of the shares in the company Villa d'Este
S.p.A. (52.86% of the capital), owner of the historic Grand Hotel Villa d'Este on Lake Como, was held by a Luxembourg company
called Finanziaria Regina S.A. (hereinafter:
"Regina SA") of which the appellant Felofin
S.p.A. (hereinafter: "Felofin S.p.A.") was
a shareholder. ('Felofin' or 'the applicant'), a
company owned by the Luti family, Loris Fontana
S.p.A., a company owned by the Fontana family, and Jean Mare Droulers and his three sons.
The three "families" (Luti, Fontana and Droulers) each
held 29.41% of Regina S.A, for a total of 88.23% (while the remaining 11.77%
was held by three other minority shareholders: Messrs
Marco and Roberto Mandelli and the company So.Co.Par. S.A.), and they also held direct stakes in the
capital of Villa d'Este S.p.A. (Felofin,
in particular, held 5.09% directly in Villa d'Este
S.p.A.).
By deed dated 30 November 2007, Felofin S.p.a. sold its 5.09%
stake in Villa D'Este S.p.A. to Finanziaria
Lago S.p.a. for a total of 303,369 shares and a
consideration of Euro 8,565,000.00, i.e. at the price of € 28.23 per share.
On the same date, Finanziaria
Regina S.A. sold the majority shareholding (53%) in Società
Villa D'Este to Finanziaria
Lago (holding company of the Fontana family, which in the meantime had left the
shareholding structure of Regina S.a.).
The sale of the shareholding provided for the
payment of € 240,000,000.00 (price per single share equal to € 76.26).
With the notice of assessment notified on 28
December 2012, the Agenzia delle
Entrate ascertained a higher income of € 9,781785.00,
which would derive from the capital gain that should have been earned on the
sale of the shares held in Villa d'Este SpA.
This capital gain had been calculated on the
assumption that the sale price had not been the declared price (€ 28.23 per
share), but that it corresponded to the "normal value" of the
shareholding which, according to the Office, would have been € 61.00 per share.
The "normal value" of €61.00 per
share had been obtained by reducing the price agreed (€76.26) by Regina S.A.
(the owner of the "majority" shares of Villa d'Este
S.p.A.) by a percentage equal to 25% which, according to the Revenue Agency,
would usually be recognised as a "majority premium" for shareholders
who transfer a controlling stake.
3. The
Company appealed against this tax assessment to the Varese Provincial Tax
Commission, requesting its annulment on the following grounds: unlawful
application of the "normal value" criterion, unlawful application of
the so-called "uneconomic" criterion, unlawful disallowance of the
taxable income, unlawful application of the "normal value" criterion,
unlawful disallowance of the taxable income criterion, unlawful disallowance of
the taxable income criterion. unlawful disregard of the results of the
accounting records on the basis of the only evidence used as a basis for the
tax claim, on the basis of the reconstruction of the reasons that had
determined the difference in the price charged by the majority shareholder and
the minority shareholders.
The Tax Commission of the Province of Varese,
with judgment no. 111/01/2013, upheld the appeal and cancelled the notice of
assessment.
In the judgment under appeal the Tax Commission
upheld the appeal filed by the Tax Office, stating that it appeared
"improbable and uneconomic that Felofin S.p.A.
could sell its shareholding to Finanziaria Lago
S.p.A. at the price of Euro 28.23 per share, i.e. at a price three times lower
(Euro 48.03) than the price agreed on the same day by the company Regina S.a. of Euro 76.26. Such sale cannot appear to be congruous
and to represent normal value, given that, contrary to what was held by the
first judges, the company Felofin, with the exit from
the shareholding of Regina S.a., held 41.67% and not
29.41% in Società Villa d'Este
S.p.A.>>.
Moreover, the appeal judges pointed out that
< <once the tax authorities have challenged the uneconomic nature of the
taxpayer's conduct, since it is totally contrary to the canons of economics, it
is up to the taxpayer to provide the necessary explanations, supported by the
relevant evidence, which is lacking in this case. It is therefore clear that
the only reason was to reduce the taxable amount of the capital gain resulting
from the sale of the shareholding in the absence, moreover, of the exemption
requirements provided for by Article 87 T.u.i.r.
(Consolidated Income Tax Act) since the so-called holding period had not
expired. The lack of valid evidence of any uneconomic conduct is decisive.
Following the appeal, the Revenue Agency
resists with a counter-appeal.
The Attorney General, Stefano Visonà asked for the dismissal of the appeal.
GROUNDS FOR THE DECISION
1.1. In the first ground, the appellant
complains of violation and false application of art. 9 d.P.R.
22 December 1986 no. 917, in relation to art. 360, first paragraph, no. 3, cod.proc.civ.
According to the appellant, the Agenzia delle Entrate
unlawfully used the criterion of 'normal' value, governed by Article 9 of the T.u.i.r., which is not a general rule and applies only to
transactions between companies in the same group resident in different tax
jurisdictions.
Moreover, the appellant considers that the
legal interpretation of the case-law, according to which the criterion of
"normal value", referred to in Article 110(7) T.u.i.r.,
is also applicable to intra-group transactions between companies resident in
Italy (see Court of Cassation, judgment no. 12844 /2015), has been superseded
by the authentic interpretation rule in Article 5, paragraph 2, of Legislative
Decree No. 147 of 14 September 2015, which expressly provides that the
provision in Article 110, paragraph 7, T.u.i.r. does
not apply to transactions <<between companies resident or located in the
territory of the State>>.
From another point of view, the applicant
complains of the unlawful application of the criterion of so-called uneconomicity, which, according to the taxpayer company,
relates only to deductible costs and not to capital gains and, in any event, is
not relevant to the present case, in which the company had purchased the same
shares fourteen months earlier at a price lower than the selling price.
Finally, the company contests the excessive
quantification of the value of the shares, arguing that the difference in value
with respect to the sale of the majority shares was fully justified.
1.2. With
the second plea, the applicant complains of violation and misapplication of
Article 39 of Presidential Decree of 29 September 1973 in relation to Article
360, first paragraph, no. 3, of the Code of Civil Procedure.
According to the appellant, the tax authorities
unlawfully disregarded the results of the accounting records on the basis of a
single piece of evidence, used as a basis for the claim for taxation and
consisting in the difference in value between the shares which were the subject
of various sales on the same date in favour of the same purchaser.
The appellant complains that the C.t.r. completely underestimated a series of contrary
indications, such as the contrast existing in the corporate structure and the
documentation proving it, the fact that the sale took place outside the
preferential Pex regime, applicable if only four
months were to elapse before the sale, as well as the listing of the shares on
the Third Market Exchange and the relevant prices in comparable transactions,
completely in line with the agreed value of the sale.
1.3. By
the third ground, the applicant complains of violation and misapplication of
Articles 115 and 116 of the Code of Civil Procedure, in relation to Article
360, first paragraph, no. 4, of the Code of Civil Procedure, for failure to
evaluate the evidence provided by the taxpayer company and erroneous evaluation
of the documents of the case.
1.4. By
the fourth plea, the appellant alleges infringement and misapplication of
Articles 115 and 116 of the Code of Civil Procedure, in relation to Article
360(1)(5) of the Code of Civil Procedure, on account of the failure to examine
decisive facts which were the subject of discussion between the parties and the
incorrect assessment of the documents in the case.
2.1. The
first and second pleas, which should be examined together because they are
connected, are unfounded and must be rejected.
In fact, it must be noted that the Revenue
Agency's analytical assessment is based on the simple presumption that the
consideration received from the sale of the shareholding is different from the
declared consideration, since the latter was much lower than the consideration
agreed with the buyer for the sale of the majority shareholding, which took
place on the same day, also in consideration of the seller's considerable
overall shareholding, which could not be considered a "weak party" in
the negotiation.
The assessment of such presumptive elements led
the appeal judge to consider that the tax authorities' assessment, based on
simple presumptions and, therefore, legitimate, was also well founded, in the
absence of contrary evidence provided by the taxpayer company.
As this Court has already pointed out, <the
judge of the merits is not precluded, in the context of the power of
reconstruction of the factual situation entrusted to him, from making use of
the assessment of the normal value to support the simple presumption that the
consideration received from the sale of a company shareholding is different
from that declared>> (Cass. Sez. 5, Sentenza n.
3290 del 02/03/2012).
More recently, on the subject of the
determination of business income and with regard to internal intra-group
transactions, it has been affirmed that the deviation from the normal value of
the transaction price pursuant to art. 9 T.u.i.r.
(Consolidated Act on Income Tax) may take on significance as a circumstantial
element for the purposes of assessing the uneconomic nature of the transactions
in terms of the lack of inherent nature of the excessive costs, or of the
possible (partial) concealment of the price in the case of excessively low
profits (see Civil Cassation, Tax Section, 25/06/2019, no. 3290, sentence no.
3290 of 02/03/2012). , 25/06/2019 , no. 16948, as well as Civil cassation, tax
section, 30/07/2020, no. 16366, according to which, for the purposes of the
value to be attributed to corporate shareholdings, the deviation from the
so-called "normal value" of the transaction price referred to in
Article 9 of the T.U.I.R. (Income Tax Consolidation Act) takes on importance as
a merely circumstantial parameter of the uneconomic nature of the transaction
carried out, so as to justify the assessment with consequent contrary evidence
to be borne by the taxpayer. It is not relevant, in this respect, to the
authentic interpretation contained in Article 5, paragraph 2, of Legislative
Decree No. 147 of 2015, which aims only to exclude the application of Article
110 of the T.U.I.R. to domestic "transfer pricing", but never to
limit the logical-legal scope of Article 9 cited above).
Moreover, according to the orientation of the
jurisprudence of legitimacy, <<in the matter of simple presumptions, the
elements taken as a source of evidence do not necessarily have to be more than
one, since the judge may well base his own conviction on only one of them,
provided that it is serious and precise, the requirement of consistency being
considered mentioned by the law only in anticipation of a possible, but not
necessary, competition of more presumptive elements>> (Cass. Ord. no.
23153 of 2018).
In the present case, moreover, the assessment
of the Revenue Agency was supported by a plurality of evidence, such as the
price charged on the same day to the same purchaser for the sale of the
majority stake of the shares and the seller's significant shareholding in Villa
d'Este S.p.A.
There is therefore no infringement of the law.
For the rest, the plea in law amounts to a
challenge to the substantive assessment made by the C.T.R., in that the
assessment of the gravity, precision and consistency of the evidence underlying
the presumed assessment relates to the assessment of the evidence, is
inadmissible in the court of law and is exclusively a matter for the court of
law, except for the assessment of the failure to examine a decisive fact, which
is the subject of discussion between the parties, pursuant to article 360,
first paragraph, no. 5, of the code of civil procedure.
In the present case, as we have seen, the
appellate court held that the Revenue Agency's analytical assessment was
legitimately founded, in light of the significant difference in the price of
the shares sold to the financial company Lago S.p.A., which was excessive
considering that the appellant, at the time of the sale to the finance company
of the portion of shares it held directly in Villa D'Este
S.p.A., did not have to pay, like any other minority shareholder, the price
imposed by Finanziaria Lago S.p.A..
The judgement on the uneconomic nature of the
sale and the correctness of the value attributed to the shares sold is also
left exclusively to the judge of merit, except for the examination of the
failure to examine a decisive fact, which is the subject of discussion between
the parties, pursuant to Article 360, first paragraph, no. 5, of the Code of
Civil Procedure.
2.2. The
third and fourth pleas, which must be examined together because they are
connected, are inadmissible and must be rejected.
As this Court has recently clarified (Cass.
S.U. Sentence no. 20867 of 30/09/2020), <<in the matter of appeal for
cassation, to deduce the violation of art. 115 c.p.c.,
it is necessary to denounce that the judge, in express or implicit
contradiction with the prescription of the rule, has placed as the basis of the
decision evidence not introduced by the parties, but arranged on his own
initiative out of the officio powers recognized to him (except the duty to
consider the facts not contested and the possibility of resorting to the
notorious), while it is inadmissible the different complaint that he, in
evaluating the evidence proposed by the parties, has given greater force of
conviction to some rather than others, being such evaluative activity allowed
by art. 116 c.p.c.>>.
Moreover, it has also been said that < in the
matter of appeal for cassation, the complaint about the violation of art. 116 c.p.c.. is admissible only when it is alleged that the
judge, in assessing a piece of evidence or, in any case, a probative result,
has not acted - in the absence of a different regulatory indication - according
to his "prudent appreciation", claiming to attribute another and
different value or the value that the legislator attributes to a different
probative result (such as, for example, the value of legal evidence), for
example, the value of legal evidence), or, if the evidence is subject to a
specific rule of assessment, he has declared that he assesses it according to
his prudent assessment, whereas, where it is deduced that the judge has only
wrongly exercised his prudent assessment of the evidence, the complaint is
admissible, pursuant to art. 360, first paragraph, no. 5, c.p.c.,
only within the strict limits in which it still allows the review of legitimacy
on defects of motivation.
Therefore, it must be concluded that "the
choice, among the various findings of evidence, those considered most suitable
to support the reasoning, involving factual appreciation reserved for the judge
of merit, which, in laying the basis of its decision a source of evidence to
the exclusion of others, has no other limit but to indicate the reasons for his
own conviction, without being required to discuss every single element or to
refute all the defensive deductions, since all the findings and circumstances
which, although not specifically mentioned, are logically incompatible with the
decision adopted, must be considered implicitly disregarded. Cass, 13 June
2014, no. 13485; Cass., 15 July 2009, no. 16499; Cass., 5 October 2006, no.
21412; Cass. 15 April 2004 no. 7201; Cass. 7 August 2003 no. 11933; more
recently Cass. 7 September 2015 no. 17702).
In the light of the above-mentioned principles,
the third plea, with which the appellant alleges infringement of Articles 115
and 116 of the Code of Civil Procedure, appears inadmissible, in that the
complaint essentially concerns the failure to assess the evidence provided by
the taxpayer, which the appeal judge considered irrelevant in view of the
circumstantial framework put forward by the tax authorities, and the erroneous
assessment of the case documents.
The fourth plea in law, alleging failure to
state reasons on account of failure to examine decisive facts, which were the
subject of discussion between the parties, and incorrect assessment of the
relevant documents, is likewise inadmissible. In fact, "the complaint for
failure to state reasons with regard to the use or non-use of presumptive
reasoning cannot be limited to affirming a different belief from that expressed
by the judge of merit, but must bring out the absolute illogicality and
inconsistency of the decisive reasoning, it being excluded that the mere
failure to assess a circumstantial element can give rise to the fault of
failure to examine a decisive point" (Cass. Ord. no. 5279 of 2020).
In the present case, therefore, the plea is
inadmissible, since the appellant complains of the failure to examine
circumstantial evidence, such as the strained relations within the corporate
structure, the advantageousness of the sale in relation to the original purchase
price of the shares and the non-applicability of the Pex
regime to the sale of the direct minority shareholding only, considered by the
appellate court to be recessive in comparison with the evidence put forward by
the office as the basis for the assessment and, in any event, lacking adequate
proof.
So much so that the Regional Administrative
Tribunal concludes that the impossibility of taking advantage of the exemption
requirements provided for by Article 87 T.u.i.r.,
since the period provided for by law had not elapsed, would make clear the
reason for reducing the taxable amount of the capital gain resulting from the
sale.
In view of the foregoing, the appeal must be
dismissed as a whole and the appellant is ordered to pay the costs of the
proceedings in favour of the Revenue Agency, as set out in the operative part.
P.Q.M.
The Court dismisses the appeal and orders the
appellant to pay to the Agenzia delle
Entrate the costs of the proceedings, which it
settles at EUR 18,000.00, by way of compensation, in addition to the costs of
the proceedings which have been reserved.
Pursuant to Article 13(1-quater) of
Presidential Decree No 115/2002, the Court declares that the procedural
requirements exist for the payment by the appellant of the further amount of the
unified contribution equal to that provided for the appeal pursuant to
paragraph 1-bis of that article, if due.
Thus decided in Rome, on 29 September 2021.