Specifically it concerns:
– of the presence of past losses subject to deferral pursuant to the emergency provisions referred to in Legislative Decree no. 23/2020;
– the possibility of adjusting the amount of initial stock existences pursuant to the 2024 Budget Law (law no. 213/2023);
– finally, the aspects linked to the new business crisis and the adequate arrangements administrative, organizational and accounting pursuant to art. 2086 of the Civil Code.
Previous losses subject to deferral
The presence in the financial statements of losses relating to the financial years 2020, 2021 and 2022 subject to postponement pursuant to the emergency provisions may constitute a no small problem in the event that thefinancial year 2023 were to close at a loss.
In such a situation, it becomes difficult to establish the correct application of the civil rules that govern the share capital (articles 2246 and 2247 of the Civil Code for joint stock companies and 2482-bis and 2482-ter for LLCs).
Since the aforementioned emergency regulations are no longer applicable for 2023, it is a question of establishing how they should be considered the past losses deferred for the purposes of checks on the limits for safeguarding the share capital provided for in the aforementioned provisions of the Civil Code.
Two interpretative positions
On the subject, in the absence of official positions taken by the legislator, there are two interpretative positions of exactly opposite nature.
The first is contained in the orientation of the Triveneto Committee of Notaries (Maxim TA1), according to which the postponement – until the fifth subsequent financial year – recognized by the art. 6, DL n. 23/2020 concerns the “operating losses” affected (relating to the financial years 2020, 2021 and/or 2022) in their entiretyas shown in the income statement, regardless of the possible existence of equity reserves capable of reducing such losses.
The second, of a diametrically opposite nature, is that contained in the opinion of the National Council of Notaries (Study no. 88-2021/I) according to which the losses subject to suspension are only those that affect the share capital and, therefore, not in the their entirety, but net of equity reserves.
Adjustment of warehouse inventory
Companies that decide to make use of the faculties provided for by the 2024 Budget Law (art. 1, paragraphs 78 et seq., law no. 213/2023) will be able adjust inventory values initial on 1 January 2023 by paying a feesubstitutive tax. The adjustment can be made by eliminating the initial existences of quantities or values higher than the actual ones as well as by recording the initial existences previously omitted.
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Beyond the fiscal convenience of the adjustment, attention must be paid to the indirect effects of this operation.
If the adjustment occurs for relevant and significant values, despite the protections offered by the legislation in question, the company could find itself in difficulty with some of its privileged interlocutors (e.g. banks, minority shareholders, suppliers, etc.) in relation to the results of the financial statements relating to the previous year to the adjustment one (2022 for solar entities).
Business crisis and adequate structures
Neither the Civil Code nor the corporate crisis reform (Legislative Decree no. 14/2019) expressly provide for specific information obligations for companies in the management report or in the explanatory notes to the financial statements, in relation to the topic of the so-called adequate administrative structures.
However, this does not mean that the directors can still evaluate the opportunity to include in the management report or in the explanatory notes, to the financial statements – as is generally proposed by default by some financial statement drafting software – an informative statement on the compliance with the civil and insolvency regulations of the adequate structures, assuming the related responsibilities regarding the actual adequacy and concrete functioning of the same.
