Observatory › Assessment and tax litigation › Company struck off: who can challenge the tax assessment after five years?

Company struck off: who can challenge the tax assessment after five years?

Once five years have elapsed since the request for cancellation, the company no longer has standing: the appeal must be brought by the shareholders, as successors to the tax liability.

The short answer

Once five years have elapsed since the request for cancellation from the Register of Enterprises was filed, the company no longer exists, not even for tax purposes: an appeal brought by the company is inadmissible. The tax liability, however, is not extinguished along with the company: it passes to the shareholders under a succession-based mechanism. It therefore falls to the shareholders to bring the challenge, and the succession effect rules out, from the very outset, any necessary original joinder of the company as a party.

The provision and the ruling

Article 28, paragraph 4, of Legislative Decree No. 175 of 21 November 2014 provides that, solely for the purposes of the validity and effectiveness of acts of liquidation, assessment, litigation and collection of taxes and contributions, penalties and interest, the extinction of the company referred to in Article 2495 of the Civil Code takes effect five years after the request for cancellation from the Register of Enterprises. This is a fictio iuris, that is, a fixed-term survival for limited purposes, which does not reopen the entity’s civil-law existence.

The provision is substantive in nature and is not retroactive: it applies only to requests for cancellation filed on or after 13 December 2014, the date it entered into force. For cancellations prior to that date the five-year rule does not apply at all, and the reasoning set out below does not hold.

The Court of Cassation, Fifth Civil Division, ruled on the matter in order No. 24251 of 30 July 2026 (ECLI:IT:CASS:2026:24251CIV), issued in proceedings concerning anti-dumping duties and import VAT arising from an investigation by OLAF (the European Anti-Fraud Office). The Court examined the question of standing as a preliminary matter. In the case decided, the cancellation from the Register of Enterprises dated back to 5 February 2019, and the appeal to the Court of Cassation, dated 5 February 2024, was found to have been served after the five-year period had elapsed: the company’s appeal was declared inadmissible, while standing was recognised for the shareholder who had validly joined the proceedings after the company’s definitive extinction, although her appeal was dismissed on the merits. This is an order issued by an ordinary division, consistent with an already established line of authority: the reasoning refers to Cass. No. 10429/2025, Cass. No. 2035/2026, and Cass., Joint Civil Divisions, 12 February 2025, No. 3625.

The dies a quo is the request, not the cancellation

The point of greatest practical weight is this: the five-year period runs from the request for cancellation, which necessarily precedes the actual registration of the cancellation. Anyone who calculates the five years from the registration date arrives at a later deadline than the real one, and risks filing a document once the company’s standing has already lapsed.

Practical implications

• Challenge brought within the five-year period. The company still has standing for the purposes set out in Article 28, paragraph 4: it appears in proceedings through its liquidator, who may grant a power of attorney, and the appeal must be filed within the sixty-day period set by Article 21 of Legislative Decree No. 546/1992, extended by the sospensione feriale dei termini (the summer suspension of court deadlines). During the same period, the shareholder does not have standing to challenge, in their own name, an act addressed to the company.
• Challenge brought after the five-year period. This is the scenario decided by the order: only the shareholders have standing, as successors to the tax liability, and an appeal filed in the company’s name is inadmissible. A different question, not addressed by this ruling, is that of a tax assessment notice served after the five-year period, which must be assessed in light of other case law.
• Five-year period expiring while proceedings are pending. This is the most treacherous scenario: the next stage of proceedings must be brought by the shareholders. The check must be carried out again before every challenge, not just once at the start of the dispute.
• Extent of the shareholder’s exposure. The shareholder is a successor merely by virtue of being a shareholder, regardless of whether they actually received any sums on liquidation. According to Cass., Joint Civil Divisions, 12 February 2025, No. 3625, the receipt of sums under the final liquidation balance sheet is not merely a cap on liability, but constitutes a condition of the action relating to the interest in bringing proceedings, the underlying requirement of which, if disputed, must be proven by the tax authorities. In partnerships, the shareholders’ unlimited liability carries through to the successional debt.
• A separate form of liability. The liability set out in Article 36 of Presidential Decree No. 602/1973 remains autonomous: it is a liability for one’s own conduct, of a civil-law rather than a tax-law nature, distinct from the succession under Article 2495 of the Civil Code, and is asserted through a separately challengeable, reasoned act. The scope differs for each figure involved: the liquidator is liable within the limits of the tax claims that would have been satisfied in the ranking of claims; the shareholder within the limits of the value of money and assets received in distribution during the two tax periods preceding the start of liquidation, or from the liquidators during the liquidation itself; the director for transactions carried out, or assets concealed, during the same two tax periods.

In practice

1. Who is involved. The professional adviser instructed, together with the former liquidator and the shareholders, before drafting any defensive document.
2. What is to be checked. The date of the request for cancellation, established from the electronic filing receipt and, as a rule, also from the reference number shown in the historical extract from the Register of Enterprises; what must not be used is the date on which the cancellation was actually registered.
3. By when. Before the deadline for the challenge expires and, in any event, at every subsequent stage of the proceedings.
4. With what document. An appeal filed in the name of the shareholders as successors, together with the historical extract, the filing receipt for the request for cancellation, and the final liquidation balance sheet with the distribution plan attached.
5. What must be kept. The complete liquidation file, including evidence of the amounts actually received by each shareholder.

Frequently asked questions

Does the company’s cancellation extinguish the tax debt?

No. Once the five-year period under Article 28, paragraph 4, of Legislative Decree No. 175/2014 has elapsed, the company is definitively extinguished, but the liability passes to the shareholders by succession. A shareholder is a successor merely by virtue of being a shareholder, even if they did not receive any sums on liquidation.

From when do the five years run?

From the request for cancellation from the Register of Enterprises, which precedes the date the cancellation is actually registered. The rule applies only to requests filed on or after 13 December 2014.

Must the shareholders be joined together with the company?

No. Once the succession effect has taken hold, it entirely removes the need for any necessary original joinder of the company as a party.