Liquidation of a company in Italy: how to liquidate an SRL or a SPA
First of all, it should be pointed out that " liquidation of a company in italy" refers to the procedure by which a company is closed.
The winding up procedure or even better the liquidation procedure, of a limited liability company falls within the scope of the articles from 2484 to 2496 of the Italian Civil Code, in which the steps to be taken to definitively cancel the company from the Italian Register of Companies are listed.
Liquidation of a company in Italy: how to liquidate an SRL
The procedure for liquidating a company and in particular an SRL consists of the following phases:
1. Dissolution of the company and announcement
There are many reasons which may lead to the dissolution of a company and all of them are contemplated by the civil code (resolution of the shareholders' meeting, prolonged inactivity, impossibility to operate for the meeting, any specific reason indicated in the memorandum/ the articles of association, capital falls below the legally required minimum, achievement of the pre-established objectives).
The first step to be taken is to notify the dissolution of the company to the Italian Register of Companies. After that the liquidators have been appointed by the shareholders' meeting then the liquidation process can start.
2. Company liquidation
Once the liquidators are registered in the Register of Companies, the former representatives will have to deliver them the company books and the accounting records, the administrative documents and a summary of the financial activities. After the receiving of such documentation, the liquidators will be able to start paying the creditors and to distribute the surplus among the shareholders.
3. Closure of the Company and cancellation from the Italian Register of Companies
Before the cancellation from the Companies' Register the liquidators are required to notify the Agenzia delle Entrate ( Revenue Agency) of the dissolution of the company and to deliver the accounting books to the Register of Companies, where they will be kept for 10 years.
Liquidation of a company in Italy: how to liquidate a limited liability company SPA
As for the SRL, the liquidation procedure of a SPA company (joint-stock company) implies the same steps as indicated above and here following reminded:
1. Verification of the conditions for the dissolution of the company and related announcement, management of the company by the directors (limited to maintain the share capital integrity), until the delivery to the liquidators ;
2. Appointment of liquidators by the directors (mandatory for joint-stock companies), filing of the final liquidation financial statements and execution of the plan for the allocation of the residual assets (liquidation procedure).
It should be noted that once all the necessary documents from directors have been delivered to the liquidators, the last ones must draw up an inventory, if any, of all the assets and liabilities of the company in liquidation before preparing the final financial statements. By virtue of the same, the liquidators proceed to settle the liabilities and to define the assets.
Having done this, on the basis of the residual assets, they draw up the final balance sheet, concerning the distribution of the surplus pro rata to the shareholders.
The allocation of assets is however subordinated to the payment of company's creditors.
3. Dissolution of the company, after its cancellation from the Italian Register of Companies and the filing of accounting / company books.
It should be noted that directors are required to promptly report the reason of dissolution to the Register of Companies, otherwise they may be considered liable, personally and jointly, for any damage caused to the company, shareholders, creditors or third parties.
Liquidation of a company in Italy: the role of liquidator after the company law reform
Interesting changes have been made to the role of liquidators,
with a consequent widening of their powers, with the reform of the
company law, adopted in order to make the value of the so-called
"company liquidation" more efficient.
The reform conferred an important role on the shareholders' meeting, especially with regard to the appointment of liquidators, assigning them the task of structuring the body in charge of the liquidation, namely to define their powers of legal and procedural representation, to determine their compensation, the term of office, the methods and limits to the power conferred to the liquidators.
However, if such powers are not expressly decided upon, the liquidators will be able to perform only all the actions considered useful for the liquidation of the company, and namely, first of all the assessment of the debts of the company and the estimated presumable revenue deriving from the liquidation of the assets.
One of the main obligations on liquidators is to satisfy creditors in compliance with the "par condicio creditorum" principle, ie acting by virtue of the equal treatment of creditors, without any preference or discretion.
The rules regarding liability for damages deriving from the non-observance of their duties are applied also the liquidators in the same way as for directors.
A very recent order dated 22 March 2017 n.13867, and pronounced by The Supreme Court, specifies content and extension of the powers of the liquidators, that in the event that the resolution of the shareholders' meeting related to the company dissolution and liquidation are limited to the appointment of liquidators and furthermore if the liquidation powers and criteria are not specified, then the same liquidators must be considered invested, pursuant to art. 2489 paragraph 1 of the Italian Civil Code, with the power to carry out any actions which they consider useful for the liquidation of the company.
Liquidation of a company in Italy: simplified liquidation in SRL
If one of the dissolution cause as refereed to the article 2487of the civil code, is envisaged, then it is possible, exclusively for the SRL, to follow the simplified liquidation procedure, which means to avoid the Notary involvement.
In detail, the administrative body, once the cause of dissolution is ascertained, can file the statement to the Business Register and call the meeting for the appointment of liquidators.
Thus, the operational steps in case of simplified
procedure would be:
1. Verification by the directors of one of the
causes of dissolution provided by the article 2484 of the civil
code, from numbers 1 to 5 of the first paragraph;
2. Call of the shareholders' meeting;
3. Resolution of the shareholders' meeting;
4. Winding Up proceedings, realization of assets and settlement of liabilities;
5. Approval of the final liquidation financial statements, be it tacit or explicit and cancellation from the Business Register.
This procedure cannot be adopted for spa companies, as for them the involvement of the Notary is always necessary to certify the declaration of dissolution.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.