In the debate on the corporate planning of family-controlled groups, the simple company (s.s.) emerges as a border institution: legally flexible and private, but fiscally opaque and limited. Its rediscovery derives from the need to protect the unity of control in the presence of multiple heirs and to regulate management continuity beyond the founder.
In the context of the reorganization of family-controlled corporate groups, the simple company represents an increasingly used tool for purposes of unitary governance, succession planning and protection of control, often evoking past uses in family groups characterized by the presence of captains of industry part of Italian and international economic and business history.
The reference evokes the events companies of the Agnelli and Berlusconi families, too often cited as a practical example of use of the legal instrument of the simple partnership, albeit in different contexts and characterized by needs and peculiarities that are difficult to repeat in other business situations.
Agnelli case (Exor):
→ Utility: ensuring unity of the vote
Berlusconi case (Fininvest):
→ An s.s. could have acted as a non-operational holding company, with the Fininvest shares inside, giving each heir shares in the s.s. but leaving centralized management.
The simple company can be used:
The simple company is one instrument of governancecontrol management
In this sense, the simple society allows for a broad private autonomy: the social contract can introduce rules on pre-emptions, indivisibility, unitary voting and administration; consequently it can be configured as a holding company under private law which concentrates the family will.
The simple company entails both advantages and disadvantages compared to the more commonly used Holding Srl.
The main advantages
Some critical issues and limits:
The s.s. it is not subject to IRES and the income is attributed to the members for transparency and taxed according to their marginal rate (23%-43%). Furthermore, being non-commercial, the s.s. it is not subject to VAT or IRAP (unless it concerns agricultural activities or qualified real estate management).
Dividends
The dividends received by a simple company are attributed to the members for transparency and classified as capital income. If the partners are natural persons who are not entrepreneurs, the 26% withholding tax is applied directly, definitively. There is therefore no double taxation, but not even any exemption: the taxation takes place entirely upstream.
In the case of holding S.r.l., the dividends received benefit from the 95% exemption provided for by the art. 89 TUIR; only 5% is included in the IRES taxable income, with an effective burden of approximately 1.2% (5% × 24%). However, in the case of subsequent distribution to natural person shareholders, an additional tax of 26% is applied.
The holding S.r.l., although introducing double taxation, proves to be more fiscally advantageous for the management of dividends and capital gains within a group, thanks to the reduced intermediate rates.
Capital gains from the sale of participation assets
The Participation Exemption (art. 87 TUIR) does not applies, since the simple company is not subject to IRES. Capital gains from the sale of shareholdings are taxed in full as miscellaneous income (26%) for the shareholders. The absence of PEX makes the simple company unsuitable as a dynamic investment vehicle. On the contrary, Holding S.r.l. enjoys PEX.
Succession and donation
The transfer of shares in a simple company that holds controlling interests in operating companies benefits from the exemption pursuant to art. 3, co. 4-ter, Legislative Decree 346/1990, if control is maintained for 5 years. From an inheritance perspective, the simple company is consistent with the art. 3, co. 4-ter, Legislative Decree 346/1990, allowing exemption from inheritance and donation tax.
The simple company offers a high degree of confidentiality and management flexibility, but is less efficient from a fiscal point of view. Otherwise, the holding company in the form of an LLC allows you to benefit from important tax advantages, such as exemptions on dividends and capital gains (PEX).
The choice between the two models depends on the objectives that the family group intends to pursue.
| Profile | Simple company | Holding S.r.l. | ||||||||||||||
| Liability | Unlimited and jointly and severally with the members (generally low risk because it is a non-commercial activity) | Limited to the capital | ||||||||||||||
| Permitted activities | Only non-commercial activity (asset management, shareholdings, real estate) | Also commercial activity, dynamic management of shareholdings | ||||||||||||||
| Governance | Very flexible, can be modeled in the social contract | Regulated by more rigid corporate rules (bylaws, meetings, Board of Directors) | ||||||||||||||
| Public transparency | No advertising or filing financial statements | Obligatory financial statements and registration in the Business Register | ||||||||||||||
| Succession and family ties | Personalised rules (indivisibility, pre-emptions, unified administration) | More formal; some constraints only through shareholder agreements | ||||||||||||||
| Costs and bureaucracy | Minimal, except for the complexity of the social pact | Major (budget, bodies, revision if large) | ||||||||||||||
| "Institutional" image | Private, confidential | More credible towards banks and third parties |
| Objective | Ideal structure |
| Keeping family branches together, regulating powers and succession | Simple company |
| Receive and redistribute dividends in a tax efficient way | Holding S.r.l. |
| Transfer shares with capital gains | Holding S.r.l. |
| Maintain confidentiality and family governance | Company simple |
| Manage risks, responsibilities and intragroup operations | Holding S.r.l. |
| Optimize generational transfer of control | Simple company |
