On 8 August 2023, the Italian Supreme Court issued its judgement in case No. 24093 in relation to advance payments for future capital increases. First of all, the Court remarked that these payments are subject to a specific restriction, as it is possible to use the relevant amount only to execute a capital increase. Coherently, if the capital increase is not executed, the amount has to be returned to the payer. The Court then clarified how to distinguish – from a substantial point of view – advance payments for future capital increases from mere capital contributions which are non-refundable by definition. In this regard, the registration adopted in accounting records are not a decisive factor. On the contrary, further elements need to be considered to identify an advance payments for future capital increases, such as (a) indication of the final deadline for the decision on the capital increase, (b) the parties' behavior, (c) specific clauses in the bylaws, and (d) any other concrete circumstances likely to reveal the common intention of the parties and the interests involved.
Originally published by August - September, 2023
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