By 1 September 2020/ /
Safe investments in Italy are possible with the right tools
In the World Bank’s Doing Business 2020 ranking, Italy is positioned in the 58th place before Kosovo and after Chile. The main causes that discourage investments in Italy are: the lack of political stability, the tax burden, civil justice and the heavy regulatory and bureaucratic framework. However, Italy is appreciated for the quality of human resources, for the low cost of labor and for the acceptable infrastructure and logistics. Furthermore, there are sectors of excellence such as: fashion and luxury, agri-food and mechanics, tourism and pharmaceuticals that make it interesting to invest in the country.
One way to limit these risks is to use a corporate instrument such as S.A.P.A. (limited partnership limited by shares), which allows to limit the risk to a certain and determined amount. This amount is significantly lower than the cost that would have been incurred for a simple due diligence. Only after all the conditions have been met, the actual investment will take place.
In fact, the limited liability company by shares, also using the expedient of entrusting the partnership to a joint stock company, can constitute a useful tool as well as to limit the risk and make a safe investment, also very agile and advantageous both to create a new business, open to financing also from third parties other than the main entrepreneur, who to make it grow rapidly.
What is a S.A.P.A.?
The limited partnership limited by shares (S.a.p.a.) is a company in which two different groups of shareholders coexist:
- limited partners, who are excluded from the administration and are liable only for their contributions;
- general partners, who are administrators by law, are personally and without limitation liable (within the limits of their assets)
As in joint stock companies, shareholdings are represented by shares.
However, as in limited partnerships, the management power belongs to directors with unlimited liability, even if subsidiary, for the social obligations. The general partners also have, by law, the right of veto on the choice of new directors and on amendments to the articles of association.
It is from this combination of elements that the stability of governance and control derives, which is the characteristic that has ensured that S.a.p.a. was elected as the main instrument for the construction of family holdings, destined to control important entrepreneurial realities and eager to project themselves into the future (the well-known Gianni Agnelli & Co. S.a.p.a is an example of this).
How does a S.A.P.A work?
The discipline of a limited partnership is essentially that of a limited company, within the limits of compatibility with the corporate type.
All general partners are by right members of the company’s administrative body.
Special rules are dictated for the appointment and dismissal of auditors or members of the supervisory board or, for the S.a.p.a. listed or subject to mandatory auditing, for the assignment or revocation of the assignment to the auditing firm.
The functioning of the Shareholders’ Meeting is almost identical to that of a public limited company. It is made up of all the shareholders and the majorities are formed with reference to the portions of the capital owned by each of them, regardless of whether they are limited partners or not.
- the general partners do not have the right to vote in the resolutions concerning the appointment and dismissal of the auditors and the supervisory board, in order to guarantee their autonomy and independence;
- in the matter of replacing directors, the resolution of the meeting, convened in an extraordinary session, which appoints the new members, must also be approved by the general administrators who have remained in office.
Limited partners do not have the right to vote for the shares they hold, in the shareholders’ meeting resolutions relating to the appointment and revocation of the auditors and to exercise the liability action against them (to guarantee the independence of the body control). If the company is listed and is subject to mandatory auditing, the prohibition of voting by the limited partners is also extended to the conferment and revocation of the assignment to the auditing firm (ART. 159 TUF).
The dissolution and liquidation of the S.a.p.a. it is governed, in general, by the rules laid down for joint-stock and capital companies, to which reference is made. In addition, there is a particular cause for dissolution specific to the S.a.p.a .: the termination of the office of all the general partners, if they have not been replaced within one hundred and eighty days.
During this period, granted to reconstitute the category of shareholders, the board of statutory auditors or the supervisory board must appoint a provisional director (who can be a limited partner or a third party), whose powers are limited by law to the performance of the acts of ordinary administration and who does not assume the status of general partner.
If all the limited partners cease to exist, the company can continue the business activity, but problems may arise if it has to adopt a resolution that the law reserves exclusively to limited partners: hence the usefulness of contacting a qualified professional to avoid running into a lawsuit dissolution of the company (impossibility of operation or continued inactivity of the meeting).
The advantages of S.A.P.A. in 8 points that allow a safe investment
- translates the shareholding into shares, facilitating their circulation and valorization, with respect to the shareholdings in the capital of limited liability companies;
- it can become an easy crowdfunding vehicle, even in the first constitution, resorting to the constitution by public subscription
- offers limited partners the limitation of liability with respect to the corporate obligations typical of joint-stock companies;
- if the partnership is adequately entrusted to a joint stock company, it also reduces the risk implicit in the assumption of unlimited liability by the partner;
- the shareholder constituted in the form of a capital company can subject the retracted profits to the so-called “PEX” tax regime, which allows, through the use of the so-called scheme “Holding-trading”, to consider taxable for IRES purposes only 5% of the profits actually collected from the investment with a taxation therefore equal to 1.2%.
- guarantees stability and agility of governance, even in situations where the shareholder structure is fragmented and not very cohesive;
- it is easy to set up as the minimum start-up share capital is equal to 50,000 euros;
- has the management costs normally referable to a limited company, minimally structured;
When is it convenient to use the S.A.P.A
In particular, in addition to what we have said above, S.a.p.a. appears suitable for the management of collective entrepreneurial initiatives (for example, for the construction of real estate complexes, according to the business model already adopted by building cooperatives); of turnaround operations that want to involve minimal investors or workers; of crowdfunding initiatives. The management of these through the S.a.p.a form allows a safe investment.
Let’s make an example
We have an interesting Italian target company, but it is a startup or is in crisis (has thus business risks and uncertainties on regulatory or bureaucratic aspects).
We can then imagine using the S.a.p.a. as a vehicle for the “safe” purchase of the target company according to the following protocol:
- A S.r.l. participated by the promoter of the reorganization initiative prepares business plans for the implementation of the recovery and / or development plan.
- The S.r.l., on the basis of the plan, becomes general partner and / or founder of an S.a.p.a., whose corporate purpose is to become the manager of the company covered by the plan and whose shareholders are one or more lenders interested in the acquisition of the target company.
- the S.a.p.a. vehicle with the S.r.l. director and sole subject with unlimited liability proposes and implements the plan;
d) if there is interest, after the implementation of the plan, the S.a.p.a. vehicle is transformed, depending on the case, into a joint-stock company or a limited liability company and the promoter is liquidated.
The investor will have as the only risk the capital he or she has decided to use to verify the soundness of the investment and this amount will certainly be less than what he or she would have spent to carry out a due diligence on the company of interest. Only after all conditions have been met, the investor will proceed to invest in the target company.
What can we do for you
MGI Vannucci & Associati boasts many years of qualified experience in the field of national and international tax planning. The firm deals extensively with finding new solutions to launch and grow start-ups and other similar forms of innovative business in the markets. In the future we will continue to look for the best solutions for our customers by exploiting tools, such as S.a.p.a., to better manage the entrepreneurial activities that, with our customers, we commit ourselves to grow every day.
MV Legal & Tax Advisory works with a team of young and qualified professionals in the tax and corporate consultancy sector, offering consultancy and qualified assistance for the management of the growth, development and reorganization steps of companies and in those of opening to the market.
Both firms have gained experience in the establishment and management of S.a.p.a. and they can support and assist you with professionalism for your safe investment choices in Italy.
Relevant legal provisions
Art. 2452 of the Italian Civil Code
Art. 87 of the Presidential Decree no. 917/86
Art. 58, paragraph 2 of the Presidential Decree no. 917/86
Art. 68, paragraph 3 of the Presidential Decree no. 917/86