Director liability and the transfer of registered office abroad: an analysis of Order no. 29575/2025
The issue of the liability of de facto directors in joint-stock companies has always been a fertile ground for litigation, especially when intertwined with internationalization operations or, at times, suspected evasion of tax obligations. Order no. 29575 of 07/11/2025 issued by the Court of Cassation intervenes with precision on a pivotal point: the equivalence between the transfer of the registered office abroad and the definitive termination of the entity through liquidation and removal from the business register.
The case originates from an assessment against D. D., in his capacity as a de facto director, involving the State Attorney General's Office in a dispute touching upon the cornerstones of Article 2495 of the Italian Civil Code and Article 36 of Presidential Decree no. 602 of 1973. At stake is the possibility of enforcing the subsidiary liability of corporate executives for unsatisfied corporate debts.
Transferring abroad is not corporate death
According to the Supreme Court, it cannot be presumed that a company moving its registered office beyond national borders is automatically equivalent to an extinguished company. While removal from the business register determines, pursuant to the 2003 corporate law reform, the end of the entity's legal personality, the transfer of the registered office constitutes legal continuity, albeit under a different jurisdiction or in a different geographical location.
Regarding assessments against de facto directors of joint-stock companies, for the purposes of Art. 2495 of the Civil Code and Art. 36 of Presidential Decree no. 602 of 1973, the transfer of a company's registered office abroad - unless fictitious - is not equivalent to its liquidation and subsequent removal from the business register.
This principle is fundamental because it sets an impassable limit on creditor and tax claims that seek to apply the rigid sanctions of post-liquidation liability to cases of mere relocation. If the transfer is real and not fictitious, the company continues to exist; therefore, creditors must take action against the entity in its new capacity or location, and cannot automatically invoke the liability of directors provided for in the event of the entity's extinction without prior satisfaction of debts.
The exception of fictitiousness and the protection of the tax authorities
The breaking point of this principle is represented by fictitiousness. If it is proven that the transfer abroad is a facade operation (so-called "esterovestizione" or simulated transfer), aimed solely at making debt recovery difficult, the corporate veil may be pierced. The salient aspects addressed by the ruling include:
- Verification of the company's actual operations in the destination country;
- The burden of proof on the tax administration regarding the non-existence of the foreign structure;
- The distinction between international business continuity and de facto liquidation.
Article 36 of Presidential Decree no. 602 of 1973 provides that liquidators and directors are personally liable if they have satisfied claims of a lower priority than tax claims or if they have concealed corporate assets. However, this provision presupposes that a liquidation phase has occurred or that the company has been removed from the register, prerequisites that are absent in the case of a legitimate transfer of the registered office.
Conclusions
Order no. 29575/2025 reaffirms a principle of legal certainty: the transfer abroad is an organizational choice that cannot be sanctioned per se as a fraudulent extinction. For professionals and businesses, this means that international planning must be supported by concrete evidence of effectiveness, in order to prevent de facto directors from being held personally liable for debts that still belong to the company's legal sphere. The protection of credit, while primary, cannot override the phenomenal reality of an entity that, although distant, remains legally active.
