Liquidation Trust: disputes relating applicable taxes
| Insights
The Supreme Court of Cassation through Sentence no. 5766 of 3 March 2020 affirmed that donation tax can also be applied to liquidation trust only in certain cases.
-If the contracting parties want the real and final transfer of the shares and related rights to the trustee and the consequent real enrichment of the beneficiary, then the donation tax will be applied proportionally at a rate of 8%.
-In the opposite case, if the liquidation trust does not identify the real beneficiaries of the transaction and there could be the possibility that the assets constituting the trust come back into the possession of the settlor then the proportional tax will not be applied but only the fixed taxation.
However, regarding these principles affirmed by the Court of Cassation, there are some doubts, especially if we analyse the purpose of the liquidation trust and the conditions necessary to apply donation tax.
In fact, donation tax is applicable when the beneficiary obtains, through the donation, an enrichment of his assets.
The purpose of the liquidation trust is the liquidation of assets in order to extinguish past debts, so in this case it’s obvious that there is no enrichment of the beneficiary.
Therefore, in contrast to the Sentence of Court of Cassation, we can affirm that in the case of a liquidation trust the donation tax could not be applied because there is no enrichment of the beneficiary.