Clausole di garanzia nella cessione di partecipazioni, indennizzi e principio di derivazione rafforzata

The judgment the Italian Supreme Court of Cassation which forms the subject matter of this short commentary contains three statements worth to be highlighted since this is the first instance in which our jurisprudence is confronted with such topics and because the correctness of the principles affirmed In particular, the Court states (a) that the so called “principio di derivazione rafforzata”, contained in art. 83, par. 1, of the Consolidated Income Tax Act is a renvoi clause to international accounting principles; (b) that indeminities payed pursuant to the breach of the representations and warranties clause in a share purchase agreement cannot be treated, for income tax purposes, as a price adjustment (but as kind of windfall profit); (c) that this treatment is not affected by any provision of the international accounting principles IAS/IFRS which may allow or impose the recognition of the indeminity net of the amount of the damage for whose restoration the indemnity is paid.Whilewe express our full agreementwith the above statements (and show some of their implications), we suggest that the last one should be grounded upon a different set of arguments.