Trust companies – static and dynamic

tusts can be classified into two categories:

  1. Static trust companies
  2. Dynamic fiduciary companies (SIM)

Static trust companies

The static fiduciaries carry out activities of registration and/or administration and safeguarding of the assets conferred by the trustee customer while observing the instructions given by the trustee for each individual transaction (Law No. 1966 of 1939):

In the model of ” static trust ” the trustee, already entitled to a right, following an existing agreement undertakes to dispose of the right on the basis of the requests and instructions of the trustee in favor of these or a third party indicated by this. 
The fiduciary company does not have the possibility of autonomously disposing of the asset or the right conferred on it by the trustee; in fact, the clauses contained in the contract show that the ownership of the good or of the right remains with the grantor. In fact, the fiduciary companies, not becoming owners of the assets and rights entrusted to them, put in place a clear separation between the assets managed in this way and those of the trust company. Consequently, from this separation the assets and rights transferred to the trust companies are subtracted from the actions of the creditors of these companies, thus remaining subject only to the actions of the trustee’s creditors. 
The aforementioned is confirmed in the judgment of the Court of Cassation of 21 May 1999 n. 4943, where it states that “ in trust companies, grantors must be identified as the actual owners of the assets entrusted to them by the company and to this instrumentally held; remaining the real owner trustee of the assets entrusted to the company, they are endowed with a protection of a real nature that can be activated directly and immediately against the trust company “. 
This activity is carried out under the control of the Ministry for Economic Development.

Dynamic fiduciary companies

The dynamic fiduciary companies (also called SIMs – Mobiliar investment companies) manage, through the fiduciary name, a wealth entrusted to them by the trustor, also making new investments, without the necessary prior authorization of the borrower. 
The latter operate with the supervision of the CONSOB and the Bank of Italy.

Loans made by shareholders through trust companies

Pettey directed to the associates, confirmed what it had previously clarified, namely the fact that the trust companies are not affected by the communication obligations relating to the assets granted to the shareholders.

In fact, these obligations must be fulfilled by the investee company or the actual partner to whom the asset is attributed. Moreover, these are transactions that do not involve the involvement of trust companies, since both the investee company and the shareholder are able to fulfill their obligations and, in principle, know each other.

With reference to the communications relating to the financing operations, Pettey notes that also for this hypothesis, the trust companies, for any loans made on behalf of their trustees, are not required to notify the Revenue Agency, as they are obliged, pursuant to the Provision n. 2073194904, the only subjects that carry out business activities for the loans received from their members and founders. However, the involvement of fiduciary companies cannot be ruled out ‘since the company required to communicate and received the loan through a trusted company, not knowing the identity of the trustee, could ask the trustee company for the name of the trustee, in order to fulfill the obligations communicative.

In this regard, Pettey believes that the fiduciary companies should refrain from providing the companies with the trustee, save for an express authorization by the trustee to provide such communication. Indeed, it is not possible to find an obligation on the trust companies to provide such a report to a private party, as confidentiality can be exceeded only in relations with the Financial Administration or other public bodies provided for by law.

In order to fulfill its obligations, the investee company could possibly enter the data of the trust company as the shareholder who made the loan.

On the basis of the ordinary assessment powers, the Inland Revenue could then request the trust company to provide on behalf of the grantor.