The item of the shareholders' contributions for future capital increases (versamenti in conto futuri aumenti capitale) has once again been placed under the lens of the Italian Supreme Court.
In the recent past, the same Court had already dealt with the matter of the different types of contributions available to shareholders, and defined, in particular, the contributions for future capital increase as a cash contribution by shareholders to the company which, unlike contributions of another nature, shall be repaid to the contributing shareholders in case the capital increase is not resolved upon within the envisaged and predetermined time limit.
As mentioned above, the Courts of legitimacy have again recently addressed the issue in two separate judgments of different nature, civil and criminal, providing further nuances to the legal institution in question.
From a purely civil law point of view, the Supreme Court's ruling No. 24093 of August 8th, 2023, emphasised the necessity that accounting books of the company shall clearly and unequivocally highlight that such contributions are subordinated to the future capital increase and provide supporting specific details (including, for example, the appropriate indication of the final term within which the increase shall be resolved upon) in order to make clear that the contributions at issue shall not be supposed as amounting to common non-refundable payments (versamenti a fondo perduto) or shareholder loans (finanziamenti soci) in favor of the company.
By applying the principle that requires the object of a contract to be determined or determinable pursuant to Article 1346 of the Italian Civil Code, the Court has in fact pointed out that the company's accounts (and financial statements' liabilities) shall give evidence of the termination effect which could arise in the absence of a timely resolution upon the increase of the registered capital. As a matter of fact, in such cases the contributing shareholder will be entitled to obtain reimbursement of the payment, being ceased its justification and ultimate scope.
In this regard, and for the reasons expressed above, it is also worth recalling how the Supreme Court itself had previously traced the path for the allocation of such specific payments to a so-called “customised” or “labelled” reserve, as exclusively pertaining to the shareholder who had made this type of contribution and with the aim of informing third parties of the encumbrance existing on this amount.
The matter of the descriptive accuracy required to support the contributions for future capital increase and their restitutive character has also been scrutinized in another very recent ruling of the Supreme Court, which, from a criminal law point of view, has added a further piece to the framework of the legal institution in question.
In particular, by decision No. 39139/2023, filed last September 26th, the Court (Criminal Section) stressed that the indication of a final term upon which – in the event of failure to resolve upon the capital increase – the shareholder's right to the restitution of the contribution arises, mainly represents an element of guarantee for the company's creditor. The relevance of such an indication, knowable by any third party in general, is justified, in fact, by the reliance that the same third parties place on the assets of the company for the performance of the company's obligations and, consequently, as a form of security for them in the event of the company's insolvency.
In this respect, therefore, the amount contributed in view of possible future capital increase shall remain bound until the condition, whether suspensive or resolutory, of the lack of a capital increase resolution is verified. Any early repayment of such contribution (with respect to the time limit agreed upon by the parties or defined by the court) would represent a funds misappropriation which could theoretically lead to corporate bankruptcy, based on the assumption that the contribution created an apparent increase in the company's assets and, therefore, illusory as to the company's real capacity to fulfil its obligations.
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