{"id":2129,"date":"2024-11-27T16:38:40","date_gmt":"2024-11-27T15:38:40","guid":{"rendered":"https:\/\/www.studiolegaleadc.it\/2024\/11\/27\/can-the-return-of-the-capital-increase-sums-to-the-shareholders-constitute-the-crime-of-fraudulent-bankruptcy\/"},"modified":"2025-05-26T13:32:34","modified_gmt":"2025-05-26T11:32:34","slug":"can-the-return-of-the-capital-increase-sums-to-the-shareholders-constitute-the-crime-of-fraudulent-bankruptcy","status":"publish","type":"post","link":"https:\/\/www.studiolegaleadc.it\/en\/2024\/11\/27\/can-the-return-of-the-capital-increase-sums-to-the-shareholders-constitute-the-crime-of-fraudulent-bankruptcy\/","title":{"rendered":"Can the return of the capital increase sums to the shareholders constitute the crime of fraudulent bankruptcy?"},"content":{"rendered":"\n

The payments made by members for future capital increases are restricted and their return could constitute the crime of fraudulent bankruptcy if such an operation, in the event of the company’s insolvency, occurs in the absence of a deadline for the execution of the capital increase and without the certainty of its non-realization.<\/em><\/p>\n\n

This is what the Court of Cassation, fifth criminal section, has established with the recent sentence n. 41536 of 11 November 2024, expressing an interesting principle on the subject of fraudulent bankruptcy. <\/p>\n\n

In the case in question, the sole director of a company was held liable for the crime of fraudulent bankruptcy of assets for having returned to the shareholders, in a phase of high indebtedness, the sum of 34,000.00 euros that had been paid for a future capital increase. <\/p>\n\n

In the appeal for annulment, the defendant’s defense argued that the transaction was criminally irrelevant and therefore the objective and subjective non-existence of the offence for which the administrator had been convicted.<\/p>\n\n

The Court of Cassation deemed the appeal unfounded, highlighting how the restitution in question constituted an unjustified impoverishment of the company. <\/p>\n\n

This conclusion stems from the distinction between mortgage financing and payments in view of a future capital increase. Referring to civil jurisprudence, the Court highlighted that the latter do not have the nature of a loan since no right to reimbursement has been defined. Consequently, they must be entered in the liabilities of the balance sheet among the reserves that the assembly can use at its discretion to cover losses or to increase the capital free of charge, attributing them to each member based on their participation in the capital.<\/p>\n\n

The contribution of the partner for a future capital increase is thus acquired in the company’s assets and therefore allocated to risk capital, constituting a guarantee for creditors in the event of insolvency. <\/p>\n\n

The right of the members to the return of the amounts donated will arise only if the resolution to increase the capital is not adopted within the deadline provided. <\/p>\n\n

In the event that no deadline has been indicated – as in the case which is the subject of the judgment under comment – the deadline can be determined by a judge specifically consulted or by the shareholders’ meeting, considering that the capital increase is one of the internal organizational acts of the company since it implies a statutory amendment.<\/p>\n\n

In light of these circumstances, the return of the sums paid by the members for the future increase during the life of the company cannot be freely arranged by the administrator<\/strong>. Such conduct would risk creating an apparent liquidity situation “on which creditors can inappropriately rely<\/em>“. <\/p>\n\n

Ultimately, the Court states that “the withdrawal of sums as reimbursement of payments made by members on account of a future capital increase which occurs in the absence of a deadline being set within which the capital increase must occur – without any certainty being acquired as to its failure to be completed – must, in the event of the company’s insolvency, be classified in terms of diversion<\/strong><\/em>“.<\/p>\n","protected":false},"excerpt":{"rendered":"

The payments made by members for future capital increases are restricted and their return could constitute the crime of fraudulent bankruptcy if such an operation, in the event of the company’s insolvency, occurs in the absence of a deadline for the execution of the capital increase and without the certainty of its non-realization. This is […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[31],"tags":[],"class_list":["post-2129","post","type-post","status-publish","format-standard","hentry","category-economic-tax-and-bankruptcy-crimes"],"_links":{"self":[{"href":"https:\/\/www.studiolegaleadc.it\/en\/wp-json\/wp\/v2\/posts\/2129","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.studiolegaleadc.it\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.studiolegaleadc.it\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.studiolegaleadc.it\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.studiolegaleadc.it\/en\/wp-json\/wp\/v2\/comments?post=2129"}],"version-history":[{"count":1,"href":"https:\/\/www.studiolegaleadc.it\/en\/wp-json\/wp\/v2\/posts\/2129\/revisions"}],"predecessor-version":[{"id":2130,"href":"https:\/\/www.studiolegaleadc.it\/en\/wp-json\/wp\/v2\/posts\/2129\/revisions\/2130"}],"wp:attachment":[{"href":"https:\/\/www.studiolegaleadc.it\/en\/wp-json\/wp\/v2\/media?parent=2129"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.studiolegaleadc.it\/en\/wp-json\/wp\/v2\/categories?post=2129"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.studiolegaleadc.it\/en\/wp-json\/wp\/v2\/tags?post=2129"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}