For PEX purposes, classification among fixed assets depends on strategic intent

With order no. 11695/2026, the Court of Cassation provided important clarifications regarding the requirement of recording shareholdings among financial fixed assets, an essential element for accessing the PEX regime (participation exemption) pursuant to art. 87, paragraph 1, letter b) of the TUIR.

The ruling emphasizes that correct allocation in the balance sheet must not be based exclusively on the duration of ownership, but on the actual strategic intent of the directors at the time of acquisition.

Requirements for 95% exemption

To benefit from the exemption on capital gains from disposal under the PEX regime, art. 87 of the TUIR requires the fulfillment of four specific requirements:

• Uninterrupted ownership: for at least twelve months preceding the disposal.

• Accounting classification: the shareholding must be recorded among financial fixed assets in the first financial statements closed during the ownership period.

• Tax residence: the investee company must not be based in territories with a privileged tax regime.

• Commercial nature: the investee must carry out an actual commercial enterprise pursuant to art. 55 of the TUIR.

Strategic intent vs. speculative purposes

The Court of Cassation clarifies that, pursuant to art. 2424-bis of the Civil Code, assets intended to be used on a lasting basis must be recorded among fixed assets. However, the decisive criterion for allocation between fixed assets or current assets for the purposes of the PEX regime is the strategic intent assigned by the directors.

• Current assets: must include shareholdings acquired with mere speculative purposes or intended for divestment in the short term.

• Fixed assets: presuppose a strategy aimed at lasting ownership, confirmed by management's intent and the company's ability to maintain the investment over time.

The case in point: the prevalence of facts over classification

In the cited order, the judges confirmed the reclassification as current assets of a shareholding that, although recorded among fixed assets, was intended by contractual agreements to be disposed of as soon as specific regional authorizations were obtained. The sequence of events demonstrated that the transferor had never actually intended to confer on the shareholding the value of a lasting investment for access to the PEX regime.

Implications for operators

Although based on an avoidance case related to now-repealed provisions (art. 37-bis DPR 600/73), the Supreme Court's position reaffirms that balance sheet classification must reflect the economic substance of the transaction.

For operators, it is essential to properly document, already at the acquisition stage, the strategic nature of the investment to avoid disputes regarding eligibility for the PEX regime (participation exemption).

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