Moving the company: exit tax and transfer of seat

Four routes from Italy to Ticino

An entrepreneur who wants his business in Ticino has four basic routes. He may found a new Swiss company and let it grow while the Italian company continues and perhaps shrinks. He may have the Italian company sell or contribute a business unit, a brand or a set of customer relationships to a new Swiss company. He may open a Swiss branch of the Italian company. Finally, he may transfer the registered seat of the Italian company itself to Switzerland, so that the same legal person continues under Swiss law. The first three routes involve two companies and raise questions of valuation, transfer pricing and permanent establishments. The fourth keeps one company but triggers the Italian exit tax on everything that leaves Italy. In practice the transfer of seat is the least common route, because Italian tax law makes it expensive and Italian company law makes it procedurally demanding when the destination is outside the European Union.

Route Italian side Swiss side New Swiss No exit tax; transfer pricing on Ordinary formation company dealings Transfer of assets Gain on sale at arm's length value Acquisition at cost to Swiss company Swiss branch of Branch profits taxed in Italy with Branch taxed as Italian company credit or branch exemption permanent establishment Transfer of seat Exit tax on assets leaving Italy (Art. Immigration under Art. 166 TUIR) 161 PILA; step-up (Art. 61a DBG)

Italian company law and the transfer of seat

Italian private international law determines the law applicable to a company by the place of incorporation. Article 25 paragraph 1 of Law No. 218 of 31 May 1995 provides that companies "are governed by the law of the State in whose territory the procedure of incorporation was completed", but Italian law applies if the seat of administration or the main object of the company is in Italy.¹ The law applicable to the company governs, among other things, its legal nature, its name, its incorporation, transformation and dissolution.² For transfers abroad the decisive provision is paragraph 3: "Transfers of the registered seat to another State and mergers of entities with seats in different States are effective only if carried out in accordance with the laws of the States concerned".³ Italy therefore permits the emigration of an Italian company, provided that the destination state accepts the immigration and allows the company to continue without liquidation.

The transfer requires a resolution of the extraordinary shareholders' meeting amending the articles, taken before a notary. Article 2437 paragraph 1 letter c of the Civil Code formerly gave shareholders of a società per azioni who did not vote for the transfer of the seat abroad a right of withdrawal. Legislative Decree No. 19 of 2 March 2023 deleted that letter, so that the position of dissenting shareholders in a transfer to a state outside the European Union now has to be settled from the remaining grounds of withdrawal, among them the transformation of the company, and from the articles of association, with the help of the notary.⁴ For transfers within the European Union, Legislative Decree No. 19 of 2 March 2023, which implemented Directive (EU) 2019/2121 and entered into force on 3 July 2023, created a structured procedure of cross-border conversion with a preliminary certificate issued by the notary in the state of departure and a final control in the state of destination.⁵ The decree applies only between member states. A transfer to Switzerland remains subject to the general rule of Article 25, to the requirements of the Italian commercial register for the deletion of the company and to the practice of notaries and registers, which may ask for proof that creditors are protected and that the company continues abroad.

Notes

1. Law No. 218 of 31 May 1995, Reform of the Italian system of private international law, Art. 25 para. 1, text at Brocardi.it, https://www.brocardi.it/legge-diritto-internazionale-privato/titolo-iii/capo-iii/art25.html ("sono disciplinati dalla legge dello Stato nel cui territorio è stato perfezionato il procedimento di costituzione"). The exception for companies with their seat of administration or main object in Italy is contained in the second sentence of para. 1. ↩
2. Law No. 218/1995, Art. 25 para. 2 (Brocardi.it, above) ("a) la natura giuridica; b) la denominazione o ragione sociale; c) la costituzione, la trasformazione e l'estinzione ..."). ↩
3. Law No. 218/1995, Art. 25 para. 3 (Brocardi.it, above): "I trasferimenti della sede statutaria in altro Stato e le fusioni di enti con sede in Stati diversi hanno efficacia soltanto se posti in essere conformemente alle leggi di detti Stati interessati". ↩
4. Codice civile, Art. 2437 para. 1, text at Brocardi.it, https://www.brocardi.it/codice-civile/libro-quinto/titolo-v/capo-v/sezione-x/art2437.html (lit. b "la trasformazione della società"; lit. c "[SOPPRESSA]", "Lettera soppressa dal D. Lgs. 2 marzo 2023, n. 19"); for the società a responsabilità limitata, Art. 2473, https://www.brocardi.it/codice-civile/libro-quinto/titolo-v/capo-vii/sezione-ii/art2473.html (amended by the same decree). ↩
5. Giancarlo Modolo and Claudio Sabbatini, report on the new procedure for the transfer of the registered office within the EU, NT+ Fisco – Il Sole 24 Ore, 30 June 2023, https://ntplusfisco.ilsole24ore.com/art/trasferimento-sede-all-estero-debutta-nuova-procedura-ue-AEHe08tD. ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of August 2025.