Limited companies · Ferrara
When an SRL pays off, what incorporation costs, the differences with the SRLS, the director’s remuneration and the taxation of distributed profits.
The SRL separates personal assets from those of the business and taxes profit with IRES (corporate income tax) at 24 per cent, regardless of progressive IRPEF rates. In exchange, it imposes financial statements, ordinary accounting, fixed costs and double taxation of distributed profits. The advantage is measured against income and the share you intend to withdraw.
In a sole proprietorship, income is attributed entirely to the individual and bears the progressive IRPEF of art. 11 del d.P.R. 22 dicembre 1986, n. 917, plus surcharges and contributions calculated on the whole business income. In an SRL, income is taxed at company level with the 24 per cent IRES provided for by art. 77 del d.P.R. 917/1986 and with IRAP (the regional tax on productive activities), whose ordinary rate is 3.9 per cent under art. 16 del d.lgs. 15 dicembre 1997, n. 446, subject to regional increases. Profit is taxed a second time on distribution.
The comparison must therefore be built on the share of profit you actually intend to withdraw: if income is reinvested, the SRL is as a rule more efficient; if it is withdrawn in full, the advantage shrinks or disappears. Fixed costs must then be weighed — ordinary accounting, filing of the financial statements, the annual chamber of commerce fee, a possible supervisory body — along with the non-tax advantages: limited liability, transferability of quotas, access to credit, the ability to bring in new members and to plan generational handover. Limited liability does not cover obligations undertaken personally, nor the directors’ own tax debts.
Legal references: artt. 11, 77 d.P.R. 917/1986; art. 16 d.lgs. 446/1997; artt. 2462, 2476 c.c.
setting up an SRL · shell companies
The minimum capital is 10,000 euros, but an SRL can also be incorporated with lower capital, from 1 to 9,999 euros, paid up in full in cash and with accelerated allocation to the legal reserve. Incorporation costs comprise the notary’s fee, registration tax, stamp duty, chamber fees and the tax on corporate books.
Art. 2463, comma 2, n. 4, of the codice civile sets the minimum capital at 10,000 euros. Commi 4 e 5 of the same article, introduced by d.l. 28 giugno 2013, n. 76 converted by legge 9 agosto 2013, n. 99, allow capital below 10,000 euros and equal to at least 1 euro: in that case contributions must be in cash and paid in full to the management body, and the sum to be allocated to the legal reserve is one fifth of annual net profits until reserve and capital together reach 10,000 euros. As to costs, the deed of incorporation bears registration tax in the fixed amount of 200 euros under art. 4 della tariffa, parte prima, allegata al d.P.R. 26 aprile 1986, n.
131; to this are added stamp duty and the secretarial fees for enrolment in the Companies Register, the annual chamber of commerce fee and the annual government licence tax on the numbering and stamping of corporate books, equal to 309.87 euros for companies with capital not exceeding 516,456.90 euros under art. 23 della tariffa allegata al d.P.R. 26 ottobre 1972, n. 641. The notary’s fee is freely agreed. The amounts of stamp duty, secretarial fees and the annual chamber fee are updated periodically and vary by type of business: they are checked at the time of incorporation against the chamber tables in force, and the Firm verifies them when preparing the quotation.
Legal references: artt. 2463, 2464, 2465 c.c.; d.l. 76/2013 conv. L. 99/2013; art. 4 tariffa parte I d.P.R. 131/1986; art. 23 tariffa d.P.R. 641/1972
guide to incorporation · SRL and SRLS compared
The SRLS (simplified SRL) has members who are exclusively natural persons, capital from 1 to 9,999 euros and a deed of incorporation drawn up on a standard, non-amendable model, with exemption from notarial fees, stamp duty and secretarial fees. Since 2013 the ordinary SRL can also have reduced capital, so the saving is the only substantive difference.
The simplified limited liability company is governed by art. 2463-bis of the codice civile: only natural persons may be members; the capital is at least 1 euro and below 10,000 euros, subscribed and fully paid in cash to the management body; the deed of incorporation is executed as a public deed in conformity with the standard model laid down by decreto del Ministro della giustizia 23 giugno 2012, n. 138, and the model’s clauses cannot be derogated from. Hence the exemption from notarial fees, stamp duty and secretarial fees.
The limit is rigidity: no clauses may be introduced on pre-emption, approval of transfers, special member rights, quorums different from the statutory ones or classes of quotas, and no supervisory body may be provided for in the articles. Since 2013 the ordinary SRL can also be incorporated with capital below 10,000 euros, so the SRLS retains only an economic and initial advantage. Conversion into an ordinary SRL does not require a true transformation, but an amendment of the deed of incorporation with a notarial resolution, with the related costs. Where there are several members or arrangements to be regulated, choosing the SRLS is almost always an apparent saving.
Legal references: artt. 2463, 2463-bis c.c.; d.m. Giustizia 138/2012
With a remuneration expressly resolved upon by the members: approval of the financial statements is no substitute. The remuneration is income assimilated to employment income and is deductible for the company in the year in which it is paid. Contributions are due on it to the INPS gestione separata or to the traders’ scheme.
A director’s remuneration requires a decision of the members: the Joint Divisions of the Corte di cassazione, in judgment 29 agosto 2008, n. 21933, ruled out that the setting of the remuneration could be regarded as implicit in the resolution approving the financial statements, requiring an express shareholder resolution; hence the risk of the deduction being challenged in the absence of minutes. For tax purposes, the remuneration falls within income assimilated to employment income under art. 50, comma 1, lett. c-bis), del d.P.R. 917/1986, unless the activity falls within the scope of the profession practised by the recipient. For the company, deduction follows the cash criterion of art.
95, comma 5, del d.P.R. 917/1986: remuneration is deductible in the year in which it is paid, with the cash rule extended to 12 January of the following year as provided by art. 51, comma 1, of the same decree. On the social security side, a non-member director enrols in the gestione separata of art. 2, comma 26, della legge 335/1995, with the contribution split two thirds to the company and one third to the recipient, at the rate set for each year and announced in the INPS circular; a member who works habitually and prevalently in the commercial business is instead enrolled in the traders’ scheme, under the prevailing-activity criterion of art. 1, comma 208, della legge 23 dicembre 1996, n. 662.
Legal references: artt. 50, comma 1, lett. c-bis), 51, 95, comma 5, d.P.R. 917/1986; artt. 2389, 2475 c.c.; art. 2, comma 26, L. 335/1995; art. 1, comma 208, L. 662/1996
the cost of labour · payroll and contributions
Profits are distributed by a members’ decision on the approved financial statements, after allocating five per cent to the legal reserve up to one fifth of the capital. For an individual member not in business, the company applies a final withholding tax of 26 per cent, on qualified and non-qualified holdings alike.
Art. 2478-bis of the codice civile makes distribution conditional on approval of the financial statements and allows payment only of profits actually earned and shown in duly approved accounts; art. 2430 requires at least five per cent of annual net profits to be allocated to the legal reserve until it reaches one fifth of the share capital. For tax purposes, dividends paid to resident individuals not in business are subject to the 26 per cent final withholding tax provided by art. 27 del d.P.R. 600/1973: the regime, originally reserved for non-qualified holdings, was extended to qualified ones by art.
1, commi 999-1006, della legge 27 dicembre 2017, n. 205. If the member is a company, the 95 per cent exclusion from taxation of art. 89 del d.P.R. 917/1986 applies instead, with IRES charged on the remaining 5 per cent. Two critical areas must be borne in mind: the distribution of reserves where losses have not been covered, and the characterisation of member withdrawals made without a members’ resolution, which in audits are frequently recharacterised as distributed profits, with the presumption of distribution of off-the-books profits in closely held companies.
Legal references: artt. 2430, 2478-bis c.c.; art. 27 d.P.R. 600/1973; art. 1, commi 999-1006, L. 205/2017; art. 89 d.P.R. 917/1986
off-the-books profits and closely held companies · static holding companies and dividends · fee calculation · request a quotation · guide to incorporating an SRL · SRL and SRLS guide · off-the-books profits and transparency · contribution of holdings under art. 177 TUIR · the benefit corporation
The choice of corporate form is decided on your own numbers, not on general rules: expected income, share to be withdrawn, present and future members, risk exposure. The fee calculator and the online quotation indicate the cost of ordinary and extraordinary assistance.
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