ITALY Law and Practice Contributed by: Francesco Dialti, Vincenzo Cimmino, Valentina Bombino and Lucrezia Ghezzi, CBA Studio legale e tributario
Substitute tax (generally at the rate of 0.25%) applies, upon the option of the parties, if the loan: • is granted, inter alia, by Italian banks (including Ital- ian permanent establishments of EU and non-EU banks), EU banks, Italian securitisation companies and EU collective investment funds; • is entered into within the territory of Italy; and • has a duration exceeding 18 months. Where substitute tax does not apply, the securities are subject to indirect taxes varying from EUR200 (where the guarantor is securing its own obligations) to 0.5% (where third parties’ obligations are being secured) while mortgage tax is generally levied at 2%. Registration taxes may not be payable if the security agreement is executed outside Italy (unless specific events, occur, eg, case of use, explicit reference or voluntary registration). However, certain securities must be registered in Italy for perfection purposes, eg, real estate mortgages, special privileges, pledges of quotas of limited liability companies ( società a respon- sabilità limitata ), pledges of intellectual property and mortgages on ships and aircraft. 4.3 Foreign Lenders or Non-Money Centre Bank Lenders Unlike EU banks and EU collective investment funds, foreign lenders cannot benefit from substitute tax, which is a special regime that can be opted for in order to reduce the indirect taxes ordinarily applicable to the loan and the security package. In addition, in order for substitute tax to be applicable, the loan must be entered into in Italy. 5. Guarantees and Security 5.1 Assets and Forms of Security Under Italian law, security can mainly be taken over: • shares or quotas of a company; • real estate property; • equipment and machinery; • IP; • receivables arising from contracts;
• bank accounts; and • moveable assets. The methods of taking security over the above assets vary according to the type of asset concerned. Shares or Quotas To grant a pledge over shares in a joint stock com- pany or quotas in a limited liability company, a deed of pledge is required. To perfect a pledge over shares, a director of the company whose shares are pledged must annotate the pledge on the share certificates and in the company’s shareholders’ ledger. The security may be perfected on the same day the pledge agree- ment is executed. To perfect a pledge over quotas, the relevant deed must be notarised and filed with the competent com- panies’ register ( registro delle imprese ). In addition, if the company’s constitutional documents provide that the company maintains a shareholders’ ledger, the creation of the pledge must be annotated by a direc- tor of the company in its shareholders’ ledger. If the deed was executed before a foreign notary pub- lic, it must also be apostilled (where necessary) and deposited with an Italian notary public together with a sworn translation (if it is not drafted in Italian). The security is usually perfected within a week of filing the pledge agreement. Inventory In principle, a pledge over equipment and machin- ery (and raw materials) can be granted. However, in order for a pledge to be created, the pledged assets must be delivered to the lenders or to a third party designated as custodian by both the lenders and the grantor. The security may be perfected on the same day the security agreement is executed. Bank Accounts This type of security qualifies as security over receiva- bles (namely, over the balance on the relevant bank accounts). In the case of security over the balance on bank accounts, the depositary bank must make an annotation in its books. The security may be perfected on the same day the security agreement is executed.
247 CHAMBERS.COM
Powered by FlippingBook