It is not uncommon in the life of an S.r.l. for shareholders to feel the need to distribute profits in a manner different from their respective shareholdings. The reasons can vary widely: a shareholder who has contributed more significantly to the company’s results, the desire to reward the operational input of some over others, or simply family dynamics suggesting an asymmetrical distribution. When all shareholders agree, the operation appears simple and straightforward at first glance. However, a recent tax ruling from the Italian Revenue Agency clarified that the correct path is much more delicate than practice often suggests, and it is advisable for those preparing to resolve in this sense to be aware of it beforehand, not after.
Asymmetrical distribution is permitted, but the method is decisive
The answer to the question of whether it is possible to distribute the profits of an S.r.l. in a measure non-proportional to the shares is, in the abstract, affirmative. The legal basis is Art. 2468, paragraph 3 of the Civil Code, which allows the deed of incorporation to grant individual shareholders specific rights regarding the administration of the company or the distribution of profits. This is not a random provision: the reform of corporate law intended to introduce a flexibility in the modulation of shareholders’ economic rights into the S.r.l. that was previously reserved only for joint-stock companies (S.p.A.), where the same function is fulfilled by the issuance of categories of shares with different dividend rights.
The decisive point, however, is not whether asymmetrical distribution is admissible in principle, but through which instrument it must be implemented. The law places the source of such rights in the deed of incorporation: a specific right rooted in this way has a stability that is independent of the individual shareholders’ resolution and can only be modified with the consent of all shareholders, pursuant to Art. 2468, paragraph 4 of the Civil Code. A shareholders’ resolution that, year after year, discretionally alters the distribution percentages remains instead a contingent choice, lacking the same solidity, with consequences reflected on both the corporate and tax levels.
What the Italian Revenue Agency clarified with the tax ruling
The case examined by the Italian Revenue Agency concerned an S.p.A. whose articles of association allowed the shareholders’ meeting to unanimously resolve on a non-proportional distribution of profits and reserves, with some S.r.l. shareholders requesting clarification on the tax treatment of the sums received in excess of their share of capital.
The Agency established a principle destined to have practical relevance far beyond the specific case: when a non-proportional distribution is supported by a causa other than the mere distribution of profits, the portion exceeding the capital participation cannot be qualified as a dividend. In the case examined, the asymmetrical distribution was aimed at meeting the liquidity needs of one of the shareholders—a purpose that the Agency considered foreign to the typical causa of profit distribution. The consequence was the requalification of the excess portion as a contingent asset pursuant to Art. 88, paragraph 3, letter b) of the TUIR, with full taxation for the recipient shareholder, without the preferential regime reserved for dividends.
It is important not to misunderstand the scope of the clarification: the Agency did not issue a generalized ban on non-proportional distribution, but censured a specific case where the underlying causa was not genuinely related to the division of profits. Although the case concerned an S.p.A., the conclusions have been interpreted by legal scholars as fully relevant also for S.r.l.s using the mechanism of specific rights under Art. 2468 of the Civil Code.
The legal debate: two interpretations, one fixed point
The debate following the ruling highlighted two distinct interpretations, both useful for guiding professional practice.
The first, developed by Assonime in a circular dedicated to the tax return of capital companies, shifted the focus from the tax level to the civil law level: the fundamental question would not be whether the Agency interpreted the case correctly, but whether the clause in the articles of association on which the company had built its distribution was itself solid under civil law. In this perspective, if the corporate premise is robust, the tax structure tends to hold; if it is fragile, any tax consequence derived from it is exposed to challenges not only from the tax authorities but also from shareholders who might contest the validity of the distributions received in the future.
The second interpretation, emerging from a contribution by a leading international tax think tank, argues that the Agency did not censure the non-proportional distribution itself, but rather a true support agreement between shareholders implemented through a dispositive act of the right to dividends. In this reconstruction, asymmetrical distribution would remain fully viable, provided it is supported by a genuinely distributive causa and an impeccable civil law process.
The two positions nonetheless converge on a point of immediate operational relevance: the solidity of the civil law premise and the genuineness of the causa are essential conditions for the distribution to hold up from a tax perspective as well.
The correct path for distributing profits non-proportionally
In light of the ruling and subsequent scholarly contributions, the path to follow can be outlined with reasonable clarity. A simple shareholders’ resolution, even if passed unanimously, does not offer a sufficiently solid basis: it is the provision in the articles of association of specific rights pursuant to Art. 2468, paragraph 3 of the Civil Code, with the unanimous consent of the shareholders and the relative registration in the Register of Companies, that guarantees the stability that a shareholders’ resolution renewable from year to year cannot ensure. The Triveneto Notary Committee had already expressed a similar view, stating that profit distribution proportions must be fixed in the deed of incorporation, without it being admissible to leave the decision of how to distribute profits to the shareholders’ meeting on a year-by-year basis.
This formal requirement is accompanied by a substantive requirement that is equally decisive: the causa justifying the asymmetrical distribution must be genuinely distributive. A motivation unrelated to the distribution of profits, such as supporting a shareholder’s liquidity needs, exposes the excess portion to the risk of being requalified as a contingent asset, with full taxability.
For companies that have already distributed profits non-proportionally based on simple shareholders’ resolutions, a timely review is advisable: first of all, of the basis in the articles of association, and of the genuineness of the underlying causa, evaluating where necessary a corrective intervention to formalize the specific rights already de facto recognized in the articles of association.
Why the civil law and tax profiles cannot be treated separately
The matter confirms a principle that frequently emerges in professional practice: in corporate matters, the civil law and tax profiles cannot be treated separately. A well-constructed clause in the articles of association, supported by a genuinely distributive causa, is the best preventive protection against future challenges from the tax authorities or the shareholders themselves.
It is precisely at this intersection that the work of Studio Santoro & Partners is positioned: the evaluation of a non-proportional distribution of profits requires a joint reading of the clause in the articles of association by the corporate lawyer and the analysis of the tax consequences by the chartered accountant, in a single integrated assistance process.
Contact us for a review of your corporate situation, both during the drafting of the articles of association and for a check on distributions already made. Our chartered accountants also act as authorized intermediaries for the direct management of compliance.
Contact us for a personalized assessment of your position in view of the deadline of November 2, 2026.
