Lending and taking security in Italy: overview

A Q&A guide to lending and taking security in Italy. The Q&A gives a high level overview of the lending market, forms of security over assets, special purpose vehicles in secured lending, quasi-security, negative pledge, guarantees, and loan agreements. It covers creation and registration requirements for security interests; problem assets over which security is difficult to grant; risk areas for lenders; structuring the priority of debt; debt trading and transfer mechanisms; agent and trust concepts; enforcement of security interests and borrower insolvency; cross-border issues on loans; taxes; and proposals for reform.

To compare answers across multiple jurisdictions, visit the Finance Country Q&A tool.

This article is part of the global guide to finance. For a full list of contents visit www.practicallaw.com/finance-mjg.

Decio Morgese, LaTorre Morgese Cesàro Rio-Studio Legale Associato
Contents

Overview of the lending market

1. What have been the main trends and important developments in the lending market in your jurisdiction in the last 12 months?

The continued economic crisis in Italy, and strict asset quality reviews imposed by regulators, has meant that Italian banks and financial institutions must maintain a highly selective approach to new lending transactions. Therefore, the availability of bank financing remains limited for both corporate and private borrowers.

Alternative financing sources for large corporate borrowers include bond issues with their advantageous interest rates. Small and medium-sized enterprises, on the other hand, increasingly obtain funding by issuing listed financial instruments under simplified regulations (mini-bonds).

 

Forms of security over assets

Real estate

2. What is considered real estate in your jurisdiction? What are the most common forms of security granted over it? How are they created and perfected (that is, made valid and enforceable)?

Real estate

Real estate mainly includes land, buildings and other constructions, even if temporarily joined to the land. Other types of real estate (that is, water sources, water courses and trees) are rarely relevant in financing transactions.

Common forms of security

The most common form of security over real estate is the mortgage.

Formalities

In order to validly create a mortgage over real estate, a deed of mortgage must be:

  • Executed in notarised form (either a public deed or a private deed with notarised signatures).

  • Registered with the competent land registry.

Tangible movable property

3. What is considered tangible movable property in your jurisdiction? What are the most common forms of security granted over it? How are they created and perfected?

Tangible movable property

Tangible movable property includes:

  • Movable property that is registered in an official register, such as cars and other motor vehicles, ships and aircraft.

  • Any other good that does not qualify as real estate.

Common forms of security

Common forms of security over movable property are:

  • A pledge.

  • A special mortgage on registered movable property.

  • A special lien under Article 46 of the Italian Consolidated Banking Act. This lien is intended to secure debt claims under medium or long-term facilities (that is, facilities with a term of more than 18 months) granted by banks.

Formalities

The following formalities must be observed to create and perfect these securities:

  • A special mortgage. This requires:

    • a notarised deed of mortgage;

    • registration with the competent office (for example, in respect of cars and other motor vehicles, the Italian public register of vehicles);

    • special formalities apply with respect to the creation of a special mortgage over ships and aircraft.

  • Pledge. This requires:

    • a deed of pledge bearing a certified date;

    • delivery of the movable assets (or delivery of the document which confers rights over movable assets) to the pledgee or to a third party custodian appointed by the parties to the deed of pledge.

  • Special lien. This requires:

    • a notarised deed;

    • registration of the deed with a special register held by the competent court.

Financial instruments

4. What are the most common types of financial instrument over which security is granted in your jurisdiction? What are the most common forms of security granted over those instruments? How are they created and perfected?

Financial instruments

The most common types of financial instruments over which security is granted are:

  • Equity stock (that is, shares of joint stock companies, which may be issued in a dematerialised form, such as in the case of listed companies, and quotas of limited liability companies).

  • Debt instruments.

  • Government bonds.

Common forms of security

The most common form of security over the above mentioned financial instruments is a pledge.

Formalities

The formalities for creating and perfecting a pledge over non-dematerialised financial instruments include:

  • Execution of a deed of pledge bearing a certified date.

  • Annotation of the pledge on the relevant certificate or endorsement of such certificate by way of security in favour of the secured creditor. The endorsement must be certified by a notary public or by an authorised representative of a bank.

  • Annotation in the relevant register of the issuer of the financial instrument.

In addition, as possession of the pledged asset is an essential requirement for the creation of a pledge, the pledged financial instruments must be delivered to the secured creditor or to an authorised custodian.

The formalities for creating and perfecting a pledge over dematerialised financial instruments include:

  • Execution of a deed of pledge bearing a certified date.

  • Registration of the pledge in a specific account held by an authorised financial intermediary.

In addition, in order to ensure the effectiveness of the pledge towards the issuer of the financial instrument, it is necessary to proceed with the annotation of the pledge in the relevant register held by or on behalf of the issuer.

A pledge over financial instruments can also be granted under Italian provisions implementing Directive 2002/47/EC on financial collateral arrangements, which, among other things, provides for strengthened enforcement mechanisms.

The formalities for creating and perfecting a pledge over quotas include:

  • Execution of a notarised deed of pledge.

  • Filing of the pledge with the competent Companies Register (Registro delle imprese).

Claims and receivables

5. What are the most common types of claims and receivables over which security is granted in your jurisdiction? What are the most common forms of security granted over claims and receivables? How are they created and perfected?

Claims and receivables

Security can be granted over any type of receivables that arise in the course of a debtor's business (such as trade receivables, inter-company receivables, dividends and so on), as well as over bank accounts.

Common forms of security

The most common forms of security over claims and receivables are:

  • A pledge.

  • Assignment by way of security.

Formalities

The formalities for creating and perfecting a pledge over receivables, making it effective towards the debtor and third parties, are:

  • Execution of the relevant deed.

  • Notification to the relevant debtor of the creation of the security or debtor's acceptance of the creation of the pledge (with an instrument bearing a certified date in each case).

These formalities also apply with respect to the assignment of receivables by way of security.

Cash deposits

6. What are the most common forms of security over cash deposits? How are they created and perfected?

Common forms of security

The most common forms of security over cash deposits are:

  • A pledge over a bank account.

  • A pledge on fungible assets (see Question 8).

Formalities

The creation of a pledge over a bank account is made in accordance with the general rules governing the creation of a pledge over receivables (see Question 5).

Security can also be granted in accordance with Italian provisions implementing Directive 2002/47/EC on financial collateral arrangements (see Question 4).

Intellectual property

7. What are the most common types of intellectual property over which security is granted in your jurisdiction? What are the most common forms of security granted over intellectual property? How are they created and perfected?

Intellectual property

The most common forms of intellectual property rights over which security is granted are patents and trade marks. It is also possible, although not very common in practice, to grant security over utility models and designs.

Common forms of security

Security over patents and trade marks is granted by way of a pledge.

Formalities

In both cases a deed of pledge must be both:

  • Executed in notarised form (either a public deed or private deed bearing a certified date).

  • Registered with the register held by the Patents and Trade marks Agency (Ufficio Italiano Brevetti e Marchi).

Problem assets

8. Are there types of assets over which security cannot be granted or can only be granted with difficulty? Which assets are difficult or problematic when security is granted over them?

Future assets

The following security can be granted over a debtor's future assets:

  • Special lien (see Question 3).

  • Pledge over future tangible movable property. Such a pledge is only perfected when the relevant tangible movable property has come into existence, provided that the relevant formalities relating to the creation and perfection of the pledge have been complied with (see Question 4).

  • Pledge over receivables or assignment of receivables by way of security, provided that the legal title (that is, the contract) from which the receivables arise already exists at the time of the execution of the pledge agreement. In such a case the pledge/assignment of receivables by way of security becomes effective only once the receivables come into existence.

Fungible assets

It is possible to grant a pledge over fungible assets (such as cash, securities, commodities and so on). In such a case, the secured creditor has a property title over such assets. On fulfilment of the secured obligations by the debtor, the secured creditor must return an amount of fungible assets equal to the amount originally pledged. In case of enforcement of the pledge, the secured creditor is entitled to retain the pledged assets up to the value corresponding with the amount of the creditor's claims; the excess amount is returned to the security provider.

Other assets

The creation of security over state-owned real estate which qualifies as beni demaniali and/or assets which form part of the state's unavailable endowment (such as, seashores, ports, rivers and lakes, and so on) is subject to specific limitations and requirements.

 

Release of security over assets

9. How are common forms of security released? Are any formalities required?

Generally, the release of a security requires the same formalities as the creation and perfection of such security and formalities therefore vary depending on the type of security.

In case of a mortgage on real estate, release of the security must be documented by a formal deed of release and relevant registrations in public registers are cancelled.

In the event of a pledge on tangible movable property or non-dematerialised financial instruments, possession of the pledged asset(s) or instruments is returned to the owner (however, in practice the release is normally also documented in writing).

 

Special purpose vehicles (SPVs) in secured lending

10. Is it common in your jurisdiction to take security over the shares of an SPV set up to hold certain of the borrower's assets, rather than to take direct security over those assets?

In Italy, creation of special purpose vehicles (SPVs) is common, especially in structured finance and/or project finance transactions. In such an event, it is also common for lenders to take security over the shares or quotas of the SPV, mostly in addition to direct security on the assets of the SPV itself.

 

Quasi-security

11. What types of quasi-security structures are common in your jurisdiction? Is there a risk of such structures being recharacterised as a security interest?

Sale and leaseback

A sale and leaseback can be defined as an arrangement where one party (a company) sells certain assets to another party (a leasing company) that immediately leases it back to the seller. Sale and leaseback transactions are common in the Italian practice and are not generally considered a security interest.

However, sale and leaseback transactions may be declared void for breach of Article 2744 of the Italian Civil Code, if the main purpose of the sale lies in the creation of the security interest rather than in the subsequent lease of the asset.

Factoring

Under Italian law concerning factoring agreements, present and future receivables can be assigned, even in bulk, provided that:

  • The assignor is an individual business acting for commercial purposes, a partnership or a company.

  • The assigned receivables arise from contracts entered into by the seller in the conduct of its business.

  • The assignee is a bank or factoring company authorised to carry out financial activity in Italy pursuant to the Italian Consolidated Banking Act.

The assignment of future receivables can also be made in respect of receivables arising from contracts not yet entered into, provided that:

  • Such contracts will be executed within 24 months from the date of the relevant assignment agreement.

  • The assigned debtor is clearly identified.

Hire purchase

Hire purchase agreements are not specifically governed by Italian law and are not common in Italian practice. The purpose of a hire purchase agreement can, in any event, be achieved through similar arrangements, such as leasing or retention of title.

Retention of title

Retention of title in favour of the seller of certain assets paid in instalments is an available form of quasi-security in Italy. In particular, the buyer acquires the ownership of the purchased assets only upon payment of the last instalment. The buyer assumes the risk of loss and deterioration of the purchased assets from the moment of its delivery. However, retention of title is effective towards other creditors of the purchaser only if it is set forth in a written agreement entered into (in a document bearing a certified date), prior to an enforcement procedure initiated by such creditors. Depending on the type and value of the relevant assets, retention of title must furthermore be registered with a special register held by competent courts.

 

Guarantees

12. Are guarantees commonly used in your jurisdiction? How are they created?

Guarantees are a common form of credit support and are normally created by a written undertaking of the guarantor for the benefit of the lender(s).

The guarantee may assume the form of a surety (where the guarantor personally guarantees the fulfilment of the debtor's obligation(s), jointly and severally with the debtor) or of a first demand guarantee (where the guarantor undertakes to pay the beneficiary a certain amount of money upon first demand, regardless of any potential challenge by the debtor).

In any event, the guarantee must set forth the maximum amount of the guarantor's liability.

 

Risk areas for lenders

13. Do any laws affect the validity of a loan, security or guarantee (or the terms on which they are made or agreed)?

Financial assistance

In principle, financial assistance by an Italian company for the acquisition or subscription of its own shares (or quotas in respect of limited liability companies) by third parties is prohibited, regardless of whether such assistance is given by means of loans, security, guarantees or otherwise, directly or indirectly.

However, a joint-stock company can directly or indirectly make loans or provide security for the purchase or subscription of its own shares by third parties, provided that the following conditions are satisfied:

  • The transaction is approved by an extraordinary meeting of the shareholders of the company providing financial assistance.

  • The company's directors prepare a report setting out the legal and economic terms of the transaction, confirming that the same is in the company's best interest.

  • The aggregate amount of the financial assistance does not exceed the company's distributable profits and available reserves resulting from the last approved financial statements.

  • The company registers in its balance sheet an unavailable reserve equal to the amount of the aggregate financial assistance granted.

Leveraged buyout transactions are subject to specific requirements, where following the buyout a merger of the target company with a debt-financed acquisition vehicle is envisaged.

Furthermore, Italian companies are prevented from accepting, either directly or indirectly, their own shares as collateral security.

Corporate benefit

In principle, companies can grant security or guarantees for obligations undertaken by companies belonging to the same group, provided, among other things, that the grant of the security:

  • Falls within the corporate purpose of the guarantor.

  • Is in the corporate interest of the security provider.

  • Is duly authorised by the competent corporate bodies of the guarantor, taking into account (if applicable) rules on the direction and co-ordination of companies.

Should the above requirements not be met, the directors of the guarantor, as well as any other entity involved in, or who knowingly benefited from, the decision may be held liable to reimburse any damages.

Loans to directors

The granting by a company of a loan or guarantee to its directors or auditors does not amount to a criminal offence.

However, any such loan should be strictly assessed on a case-by-case basis, taking into account the financial situation of the company and the existence of corporate benefit for the company extending the loan or guarantee.

Usury

In the event interest (including related fees and expenses) charged by a lender exceeds the maximum percentage set forth by the Bank of Italy, the relevant clause of the loan agreement is void and no interest is due at all.

The maximum permitted effective global average rate is calculated and published quarterly by the Ministry of Economy and Finance.

 
14. Can a lender be liable under environmental laws for the actions of a borrower, security provider or guarantor?

A lender who only lends funds (that is, someone who is not involved in the management of the borrower and does not hold a property title of assets with respect to which potential environmental issues may arise), does not assume responsibility for actions of the borrower, even if it takes security on the borrower's assets (for example, a mortgage on real estate).

However, in the event a lender holds a property title on assets (for example, property of real estate in leasing transactions) or subsequently acquires such property (for example, in an enforcement procedure, where the assignment of a secured asset to the lender occurs), the lender may be obliged to carry out remediation activities of a contaminated site. This is without prejudice to any rights for reimbursement from the borrower or responsible third parties.

 

Structuring the priority of debts

15. What methods of subordination are there?

Contractual subordination

Contractual subordination of debt is possible under Italian law and particularly common in relation to syndicated loans and securitisation transactions. In practice this can be achieved through an inter-creditor agreement, although clauses governing subordination may be disregarded by a bankruptcy receiver in an insolvency scenario.

Structural subordination

Structural subordination is possible under Italian law and is used, among others, in acquisition finance transactions where junior facilities are made available to a holding company and senior facilities are made available to an acquisition vehicle or, following the acquisition, the target company.

Inter-creditor arrangements

Inter-creditor agreements are commonly used in relation to syndicated loans and securitisation transactions. Normally, they cover matters not regulated in the facility agreement, such as:

  • Subordination.

  • Acceleration and enforcement rights.

  • Enforcement of security and/or guarantees.

  • Release of security.

 

Debt trading and transfer mechanisms

16. Is debt traded in your jurisdiction and what transfer mechanisms are used? How do buyers ensure that they obtain the benefit of the security and guarantees associated with the transferred debt?

In principle, credits can be transferred under the rules governing the assignment of receivables, according to which the creditor is entitled to assign them without the consent of the assigned debtor, unless, among other things, the assignment has been excluded by the parties on a contractual basis.

This entails the assignment of security interests (subject to the fulfilment of the relevant formalities), as well as the assignment of the privileges and other accessories of the relevant credits or claims (that is, any right connected with the underlying credit-debit relationship).

In order to transfer to the assignee the same contractual position of the assignor, the parties to the facility agreement usually envisage a mechanism providing for the assignment of the agreement to the assignee.

Importantly, the acquisition of debt or loans by foreign entities may be deemed a restricted activity, requiring authorisation by the Bank of Italy (see Question 25).

 

Agent and trust concepts

17. Is the agent concept (such as a facility agent under a syndicated loan) recognised in your jurisdiction?

The agent concept is recognised under Italian law. In syndicated loans governed by Italian law, a bank commonly acts as an agent for the other lenders. The bank exercises the rights and powers of the lenders under the facility agreements and connected security documents, on the basis of instructions from the other lenders according to decision-making processes set forth in the inter-creditor agreement.

A security agent may be appointed in syndicated loans to enforce rights on behalf of the participating banks. However, all security interest must still be granted in favour of each syndicate bank.

 
18. Is the trust concept recognised in your jurisdiction?

It is not possible to constitute a trust under Italian law, however a trust constituted in a foreign jurisdiction is recognised in Italy in accordance with the HCCH Convention on the Law Applicable to trusts and on their Recognition 1985. The use of trusts as a means of structuring financing transactions is in any event extremely rare in transactions governed by Italian law.

 

Enforcement of security interests and borrower insolvency

19. What are the circumstances in which a lender can enforce its loan, guarantee or security interest? What requirements must the lender comply with?

Assuming that the debtor is solvent, a secured creditor is entitled to enforce its security upon the occurrence of an event of default under the relevant finance document. Such an event usually triggers the acceleration of the loan.

Methods of enforcement

20. How are the main types of security interest usually enforced? What requirements must a lender comply with?

Mortgage over real estate

Mortgages over real estate are enforced through a court-administered enforcement procedure.

Subject to certain exceptions, two requirements must be met to commence enforcement proceedings:

  • The secured creditor must have a title on which the enforcement proceeding can be based. This may be, among other things:

    • an enforceable court order from the court in whose jurisdiction the mortgaged immovable real estate is located;

    • a notarised deed;

    • a contract certified by a notary public evidencing the underlying claim.

  • The secured creditor must serve notice through a court bailiff, demanding payment of the amounts due within a specified time limit (of at least ten days) warning the debtor that, failing payment, enforcement proceedings will be commenced.

If the debtor does not comply with this order, the secured creditor can foreclose the mortgaged assets by serving a foreclosure deed on the debtor.

Between ten and 90 days from the implementation of the foreclosure, the secured creditor can file an application to the competent court for the sale of the foreclosed assets.

The sale of the foreclosed real estate can take place, at the judge's discretion, either by allowing any interested party to present purchase offers or, if this procedure fails, by public auction. In both cases, the value of the mortgaged real estate is determined by the court through information given by the parties and/or by resorting to an estimate made by an expert consultant.

Following the sale, the proceeds are distributed among all creditors in the enforcement procedure, in accordance with the priority of their respective security.

Pledge over tangible movables

Prior to the enforcement of a pledge over tangible movable assets, the secured creditor must serve notice on the debtor and the security provider through a court bailiff demanding payment of the debt.

Failing payment within the deadline specified in the notice (typically five days), the secured creditor can enforce the pledge either through:

  • A court-supervised procedure, under the general rules relating to the seizure of personal property.

  • A private enforcement procedure, if the parties have agreed in the relevant deed of pledge that the forced sale will be directly carried out by the secured creditor, provided that the private enforcement ensures transparency of the sale and fairness of the determination of the price. With certain limitations, the secured creditor can alternatively opt for the appropriation of the assets instead of their forced sale.

Pledge over receivables

The secured creditor can either take action seeking a forced sale of the receivables or enforce privately the security by collecting monies directly from the debtor(s) up to the amount of the secured creditors' credits.

Pledge over cash deposits

As this pledge constitutes a form of irregular pledge, under which the ownership of the pledged asset is transferred to the secured creditor, there is no need for the creditor to commence enforcement proceedings. Therefore, the parties can agree in the relevant deed of pledge that the depository bank will be authorised to distribute the credit balance in favour of the secured creditor(s) on default, thereby discharging the outstanding secured obligations up to the amount of the same. The excess amount, if any, must be returned to the security provider.

Pledge over intellectual property

The secured creditor can either enforce this security through a court supervised procedure or, in theory, through a private enforcement procedure. The latter, however, is not in practice feasible, as intellectual property rights are not assets for which a market price can be easily determined.

Pledge over shares

Pledged shares can be either sold through:

  • An authorised intermediary at their market price, provided the relevant criteria and formalities are set out in the deed of pledge.

  • A court supervised procedure.

Pledge over quotas

Pledged quotas can be either sold through:

  • A private enforcement procedure, provided the relevant criteria and formalities are set out in the deed of pledge.

  • A court supervised procedure.

Rescue, reorganisation and insolvency

21. Are company rescue or reorganisation procedures (outside of insolvency proceedings) available in your jurisdiction? How do they affect a lender's rights to enforce its loan, guarantee or security?

A debtor in financial difficulties may prepare a certified reorganisation plan under Article 67 of the Italian Bankruptcy Law, aimed at restructuring the company. Such a plan, by itself, does not need to be agreed with lenders and does not restrict their rights. However, in practice the plan is normally negotiated with the main creditors and is assisted by agreements with them (for example, stand-still and/or restructuring agreements).

A restructuring or reorganisation of the debtor can be achieved also in the frame of procedures, which require the involvement of the Italian courts or public authorities (and which may entail the insolvency of the debtor), that is:

  • Composition with creditors under Article 160 and the following of the Italian Bankruptcy Law, aimed at restructuring or liquidating the company.

  • Debt restructuring agreements under Article 182-bis and the following of the Italian Bankruptcy Law, aimed at restructuring or liquidating the company.

  • Special administration proceedings for financial institutions and/or insurance companies under Article 194 of the Italian Bankruptcy Law, aimed at liquidating the company.

  • Extraordinary administration proceedings for large insolvent companies. This procedure is designed to facilitate the reorganisation of large companies in financial distress. Depending on the number of employees and the debts of the company, there are different forms of extraordinary administration proceedings.

In general, these mentioned procedures strongly limit (and, in most circumstances, completely inhibit) a lender from proposing or continuing any enforcement procedures.

 
22. How does the start of insolvency procedures affect a lender's rights to enforce its loan, guarantee or security?

On the opening of an insolvency procedure, creditors (both secured and unsecured) are prevented from bringing legal actions or attaching any debtor's asset. In addition, all actions taken and proceedings already commenced are automatically stayed. However, in certain cases security granted in accordance with Italian provisions implementing Directive 2002/47/EC on financial collateral arrangements (see Question 4) can be enforced also during an insolvency procedure.

Transactions carried out by the debtor (such as any payments) after the opening of the procedure are considered ineffective against the insolvency estate. Creditors' claims are satisfied from the proceeds of the insolvency estate, provided that such claims have been duly filed with the competent bankruptcy court.

 
23. What transactions involving loans, guarantees, or security interests can be made void if the borrower, guarantor or security provider becomes insolvent?

Payments made by a debtor with respect to debts that fall due on or after the date on which the relevant debtor is declared bankrupt are ineffective against the creditors of the relevant debtor, if such payments are made in the two years preceding the bankruptcy declaration.

Actions for claw-back may further be initiated by an insolvency receiver with respect to specific suspicious transactions carried out by the debtor in certain periods prior to the insolvency, if the other party was aware of the debtor's insolvency status. With respect to certain transactions, the burden is upon the other party to prove that it was not aware of the insolvency (constructive knowledge).

 
24. In what order are creditors paid on the borrower's insolvency?

As a general rule, under Italian law creditors have equal rights to be paid out of the estate of the debtor, subject to pre-emption rights permitted under applicable laws, that is liens, mortgages and pledges.

In an insolvency scenario, subject to certain exceptions, claims rank in the following order:

  • Pre-emptive claims, such as receiver's fees and claims relating to the insolvency proceedings.

  • Holders of general or special liens.

  • Secured creditors (holders of mortgages and pledges).

  • Unsecured creditors.

  • Subordinated creditors, to the extent that subordination rights are upheld (see Question 15).

 

Cross-border issues on loans

25. Are there restrictions on the making of loans by foreign lenders or granting security (over all forms of property) or guarantees to foreign lenders?

Performing lending and granting security activities on a professional basis is restricted to banks and certain authorised financial entities.

Foreign entities may obtain authorisation in Italy. Relevant formalities vary depending on the country of origin of the lender.

 
26. Are there exchange controls that restrict payments to a foreign lender under a security document, guarantee or loan agreement?

There are no exchange controls in Italy. However, payments to a foreign lender may be subject to withholding tax. Restrictions also apply with respect to transactions involving specific countries (for example, countries with respect to which international sanctions apply).

 

Taxes and fees on loans, guarantees and security interests

27. Are taxes or fees paid on the granting and enforcement of a loan, guarantee or security interest?

Documentary taxes

Taxes apply differently to:

  • The granting of a loan, guarantee or security interest.

  • The enforcement of a loan, guarantee or security interest.

Granting of a loan, guarantee or security interest

Parties can opt for the application of a substitute tax if:

  • The lender is an Italian resident bank, an Italian permanent establishment of non-resident banks or a bank established in other EU member states.

  • The loan is a medium to long-term lending agreement (that is, the term of the transaction has a maturity higher than 18 months).

  • The loan is signed and executed in Italy.

  • The parties opt for the application of the substitute tax.

Application of the substitute tax replaces all other registration, stamp duty, mortgage or cadastral taxes. This also applies to any security granted in connection with the loan (application of the substitute tax therefore replaces the taxes that usually apply to security interests) (see below, Registration tax on guarantees and security interest).

If the above conditions are not met, the loan may fall within the scope of Italian VAT but be VAT-exempt (with VAT applied at a 0% rate). In such a case, if the loan agreement is filed for registration with the Italian tax authorities, registration tax is due at a lump sum of EUR200 together with stamp duty tax (imposta di bollo), generally equal to EUR16 for each four pages or 100 lines of the agreement.

If the loan is outside the scope of application of VAT, filing of the loan agreement with the Italian tax authorities triggers a 3% registration tax on the amount of the loan. Stamp duty also applies at the same rate indicated above.

Registration tax on guarantees and security interest

Guarantees. Guarantees are generally not subject to mandatory registration with the Italian tax authorities. When filed for registration with the Italian tax authorities, registration tax applies at a rate of 0.5% on the amount of the secured obligations.

Security interest. Tax treatment varies on the basis of the type of security interest as follows:

  • Special lien, mortgage, pledge over quotas, shares, pledge over receivables. The rate of the registration tax depends on whether the security interest secures the security provider's own obligations or those of a third party. If the security secures the security provider's own obligations, a flat rate registration tax is generally payable in the amount of EUR200. Otherwise, registration tax applies at a rate of 0.5% on the amount of the secured obligations (or, with respect to quotas/shares, the lower between such amount and the value of such quotas/shares).

  • Assignment by way of security of receivables (cessione crediti in garanzia). The assignment of receivables by way of security is, in principle, always subject to registration tax at a rate of 0.5% calculated on the nominal value of the receivables assigned.

  • Mortgage tax. A mortgage over property is subject to mortgage tax at a rate of 2% on the secured amount (a 0.5% proportional rate charge may apply on the cancellation of the mortgage). Mortgage tax applies in addition to the registration tax mentioned above.

  • Stamp duty tax. In case of filing (voluntary or mandatory) with the Italian tax authorities, guarantees and security interests are subject to stamp duty tax. The tax ordinarily amounts to EUR16 for every four pages or 100 lines of the document.

Enforcement

On the enforcement of the documents of a transaction, registration tax will be payable at a rate ranging from EUR200 to a 3% proportional rate.

Fixed stamp duty tax will be payable currently at rate of EUR16 for every four pages or 100 lines of the document.

In addition, legal proceedings of a civil, administrative or tax nature are subject to special stamp duty called contributo unificato di iscrizione a ruolo (Contributo). The Contributo varies depending on the value and the type of the proceedings.

Registration fees

See above, Registration tax on guarantees and security interest.

Notaries' fees

Notarial fees need to be agreed with the public notary in advance.

 
28. Are there strategies to minimise the costs of taxes and fees on the granting and enforcement of a loan, guarantee or security interest?

Grant

Certain types of agreements (including the vast majority of loans, guarantees and some security interests) may be executed by way of exchange of correspondence. In such a case, neither stamp duty tax nor registration tax apply at the date of execution.

Mortgages, special liens, pledges over quotas of Italian limited liability companies (società a responsabilità limitata) and assignment of receivables/pledge involving a public body (typically, the assignment of VAT receivables) cannot be executed by way of exchange of correspondence and are, therefore, always subject to registration tax and to the other taxes specifically applicable to them.

Agreements executed by way of exchange of correspondence are subject to registration tax (and stamp duty tax) in the following circumstances:

  • Caso d'uso. If the documents are filed with an Italian Court, when carrying out administrative activity or with an administrative authority, unless such filing is mandatorily required by law, the following taxes apply:

    • fixed stamp duty, payable currently at a rate of EUR16 for each four pages of the relevant documents;

    • registration tax, payable at a rate varying from EUR168 to up to 3% of certain amounts indicated in the documents.

  • Enunciazione. The registration tax, at a rate varying from EUR168 to up to 3% and fixed stamp duty tax, currently at a rate of EUR16 for each four pages of a document, may become payable where such document is either:

    • filed for voluntary registration;

    • cross-referred (that is, mentioned or in any way referred to) in any other document entered into between the same parties and filed for any reason with the registration tax office or in any judgment of an Italian Court.

Enforcement

There is no possibility to minimise/reduce the tax burden at the time of the enforcement of the loan, guarantee or security interest.

 

Reform

29. Are there any proposals for reform?

There are no current proposals for reform which significantly impact lending and taking security in Italy.

 

Online resources

W www.normattiva.it

Description. Normattiva is a database of Italian legislation, maintained by the Italian government. The data-base includes Italian legislation currently in force, in the Italian language. No official English translation is publicly available.



Contributor details

Decio Morgese, Partner

LaTorre Morgese Cesàro Rio-Studio Legale Associato

T +39 02 87212101
F +39 02 93664586
E decio.morgese@lmclex.it
W www.lmclex.it

Professional qualifications. Italy, Avvocato.

Areas of practice. Banking and finance.

Recent transactions

  • Advising a Sino-Italian private equity fund in the leveraged buy-out financing of an Italian industrial company.

  • Advising a pool of Italian banks on the project-financing of waste-to-energy plants located in Lombardy and Piedmont..

  • Advising an Italian bank on the financing of a combined real estate and renewable energy project in Veneto.

Languages. Italian, English


{ "siteName" : "PLC", "objType" : "PLC_Doc_C", "objID" : "1247316947743", "objName" : "Lending and taking security in Italy overview", "userID" : "2", "objUrl" : "http://us.practicallaw.com/cs/Satellite/us/resource/5-501-1519?null", "pageType" : "Resource", "academicUserID" : "", "contentAccessed" : "true", "analyticsPermCookie" : "25e8a493e:15b08e9df1f:-6ce1", "analyticsSessionCookie" : "25e8a493e:15b08e9df1f:-6ce0", "statisticSensorPath" : "http://analytics.practicallaw.com/sensor/statistic" }