Thursday, 19 September, 2019

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.

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