The use of the family pact (articles 768-bis ss. of the Civil Code) in the reorganization and control of corporate groups: an alternative to the simple company?

The family pact: nature and purpose

The family pact (articles 768-bis ss. of the civil code) is a contract with which the entrepreneur transfers the company or corporate shareholdings to one or more descendants during his lifetime, with the participation of all heirs. It has the function of anticipating succession in the company or group, guaranteeing management continuity and ownership stability, and protecting legitimate heirs who, having participated, cannot challenge it. It is a free act, irrevocable unless unanimous consent, with immediate and definitive effects.

The tax benefits in the use of the family pact

From a tax point of view, the transfer of shareholdings and/or companies regulated in a family pact can benefit from an exemption from inheritance and donation tax (art. 3, co. 4-ter, Legislative Decree 346/1990, as amended by Legislative Decree 139/2024), provided that:

Object of the transfer

Companies or business branches;
Corporate shares or shares.

Beneficiaries

Spouse of the settlor;
Descendants of the settlor.

Control condition

For shareholdings in joint-stock companies (art. 73, co. 1, letter a, TUIR), the exemption applies only if the transfer involves the acquisition or integration of control pursuant to art. 2359, co. 1, no. 1, c.c.

Duration of control or activity

The beneficiaries must maintain control or continue the business activity for at least 5 years from the date of the transfer;
A formal declaration is required together with the deed of donation or declaration of succession.

Forfeiture of the benefit

Failure to comply with the conditions entails:

application of the tax in an amount ordinary;
administrative sanctions (art. 13, Legislative Decree 471/1997);
late payment interest from the date on which the tax should have been paid.

Relevant limits:

The exemption does not apply if the transfer does not result in effective control of the company;
In the case of split assignment of the controlling shareholding among several descendants, it is necessary to verify whether the control it is however acquired or maintained in a unitary way, also for example through a single shared corporate instrument (s.s. or holding srl).

The simple family company as a governance tool

The simple company is a vehicle for holding and unitary management of shareholdings, which allows centralizing control and regulating decision-making powers, maintaining flexibility and fiscal neutrality. It can act as a family holding, a governance tool and an asset safe, but it does not resolve succession issues, as the shares fall into the shareholder's inheritance.

Functional comparison

The family pact and the simple partnership operate on different, but complementary levels: the former transfers and stabilizes control (succession); the second manages and coordinates over time (governance).

The idea, often discussed in doctrine, of "using the family pact instead of the simple company" seems to move from two assumptions: that both are tools for organizing and transmitting control over a group of companies; that the family pact can have an "institutional" and lasting function, like the simple society.

These assumptions are not entirely correct: the family pact (art. 768-bis ss. c.c.) is a contract for the inter vivos transfer of shareholdings (or company) aimed at stabilizing business succession and preventing inheritance conflicts. It is, therefore, an act of circulation and not a subject or container like the simple society.

We cannot therefore speak of a "pure alternative": the pact serves to transfer and crystallize control structures, not to manage them over time. The simple company, on the other hand, is a vehicle of governance: it can hold shareholdings, distribute profits, regulate decision-making powers.

The family pact immediately stabilizes the transfer, avoids challenges by the legitimate heirs and allows for the regulation of compensatory relationships, but it is rigid, irrevocable unless unanimous consent, and does not manage the post-transfer phase.

The simple company, on the other hand, allows flexibility in governance, allows centralization of control and is fiscally neutral due to the possession of shareholdings, but does not resolve the inheritance issues, which remain open.

Reorganisation of family-controlled corporate groups: comparison between companies Semplice e Holding Srl

It follows that the family pact does not replace the simple company, but precedes it or integrates it into an organic planning. In practice, the transfer of shareholdings pursuant to articles. 768-bis ss. d.c. it can be accompanied by the establishment of a simple family company responsible for holding the shares, regulating voting rights and regulating the distribution of proceeds.

Comparison and integrated model

The most effective perspective is the combined one:

the family pact anticipates the succession and consolidates control (for example, the father who transfers shares to the son already active in the management);
the simple family company becomes the operational tool, in which to convey shareholdings, profits or real estate, regulating governance over time.

In this scheme, the agreement represents the legal act that legitimizes the transition, while the simple company constitutes the control and management structure.

Initial situation

The entrepreneur head of the family (A) directly holds:

shareholdings in multiple operating companies (S1, S2, S3);
real estate or controlling shareholdings.

Objective: to ensure management continuity and unified control after the generational transition.

Phase 1 – Transfer

The entrepreneur transfers the shareholdings to the designated descendants with a family agreement.

Deed

A stipulates a family pact transferring the controlling shares of the operating companies to his children (B and C), who already participate in the business or group (S1, S2, S3). The agreement may include conditions or constraints for maintaining the shareholdings (e.g. obligation not to sell for n years).

Effects

Immediate and stable transfer of control;
All heirs participate and cannot challenge;
Compensations between heirs are regulated (e.g. B receives shares, C receives properties or money).

Phase 2 – Management

The beneficiaries (B and C) constitute a simple family company to:

centralize control of the transferred shareholdings;
regulate voting powers, strategic decisions, distribution of profits;
provide for clauses of pre-emption, approval, qualified majority, etc.

The s.s. It thus becomes a family holding or coordination vehicle.

Phase 3 – Coordination

To complete the governance structure, the parties can:

integrate with a shareholders' agreement between the shareholders of the company, which regulates and transfers the shares;
draw up a Family Protocol, which defines family governance rules, entry criteria for descendants and reinvestment policies.

Advantages and critical issues of the combined model

The model allows:

continuity in control (thanks to the agreement);
inheritance stability and absence of litigation;
flexible family governance over time;
efficient tax planning (s.s. or holding LLC);
prevention of fragmentation and conflicts.

Fotografia in bianco e nero dell'area amministrazione, Malerba & Partners.

Tool	Function	Duration	Rigidity	Scope
Family pact	Transfer and stabilization of succession	A one-off	High	Successory
Simple company	Management and control over time	Continuous	Flexible	Governance
Shareholders' agreement/ protocol	Coordination decision-making	Medium-long	Modifiable	Operational rules

The use of the family pact (articles 768-bis ss. of the Civil Code) in the reorganization and control of corporate groups: an alternative to the simple company?

The family pact: nature and purpose

The tax benefits in the use of the family pact

The simple family company as a governance tool

Functional comparison

Comparison and integrated model

Advantages and critical issues of the combined model

Conclusions

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