Donation of Shares and Generational Transition: Reorganizing Without Losing Tax Exemption

By Carlo Saccaro

The transfer of a family business is not only an act of affection, but a maneuver that requires particular attention and precision in managing tax aspects. When making a donation of shares in a company to descendants, the law offers a valuable benefit: total exemption from donation taxes (pursuant to Article 3, paragraph 4-ter, TUSD).

However, this benefit is subject to a specific commitment: the beneficiaries must maintain control of the shareholdings for at least five years. This very constraint often generates a paralyzing fear in businesses: can the need to reorganize the group during the observation period compromise the benefit related to the donation of shares?

Business Continuity Beyond Immobility: Response 11/2026

The recent Response No. 11/2026 from the Italian Revenue Agency provided an essential clarification, confirming that business continuity does not require corporate immobility. In the case examined, a controlling interest had been subject to a demerger followed by a contribution.

The Agency reaffirmed a common-sense principle: extraordinary transactions do not cause automatic forfeiture of the benefit if the beneficiary of the donation of shares continues to maintain control, even indirectly, in the company involved. It is now certain that the benefit remains valid even in the presence of reorganizations, provided that the "helm" of the company is not transferred.

Control as the Center of Corporate Governance

From the Agency's analysis, it clearly emerges that the risk of forfeiture does not lie in the corporate transaction itself, but in the potential loss of the controlling position.

To avoid violating the commitments made at the time of the donation of shares during the tax surveillance period, it is necessary to focus on three key aspects:

• Maintenance of control: the command structure must remain identifiable in the hands of the beneficiary, even through indirect shareholdings.

• Reorganization planning: the extraordinary transaction must be part of a clear design consistent with the long-term strategy.

• Legal protection: control rules must be written in black and white in the bylaws or shareholders' agreements.

A Strategic Lever for Business Continuity

Ultimately, the benefit depends entirely on maintaining control. Taxation, command structure, and governance must go hand in hand to prevent technical steps necessary for growth from representing tax complications.

For the entrepreneur and their advisors, this means that it is possible to evolve and restructure the corporate structure even immediately after a donation of shares, provided that each phase of the handover is planned and monitored. Only through a broad and multidisciplinary vision is it possible to ensure protected, balanced, and truly lasting growth for the family business.

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