The agency then appealed to the Court of Cassation with a complaint, inter alia, about the application of the regulations governing responsibility in the event of liquidation and termination of the company based on art. 2495 cc, 36 DPR 602/73, as well as sanctions for de facto directors (article 7 DL 269/2003).
The legitimacy judges accepted this exception, and initially noted that, according to the Office, the transfer of the head office abroad was non-existent, as the center of effective management and control and activities of the company remained in Italy. That is, it is a fictitious transfer abroad.
For the Court of Cassation, the cancellation of a company from the Italian business register, which occurs not after the completion of liquidation or termination procedures, but due to its transfer abroad, presupposes the continuation of activities in another State.
In this case the provisions for dismissal (article 2495 of the Civil Code) do not apply, let alone the responsibility of subsidiary directors, liquidators and shareholders (article 36 of Presidential Decree 602/73).
However, if the transfer is fictitious and has no actual continuity of activity, then the judge must examine the transfer of the taxable amount to the “manager” of the company.
