Il contratto di stock lending tra qualificazione civilistica e abuso del diritto in materia fiscale

Stock lending agreement has been shaped by various case law decisions over the past decade. From a civil law perspective, stock lending agreement represents is hard to identify in a specific statutory type of contract and this circumstance also reflects from a tax perspective. Indeed, both the Italian Tax Collection Agency and tax judges are struggling with finding the correct identification of this kind of contract, trying to find an autonomous location in the legal system. In this context the claimed autonomy of civil and tax systems, based on different requirements, caused issues of identification - also in court proceedings - of an appropriate legal instrument for the fulfilment of tax interests. As a consequence of this situation, certain questionable or unfounded tax assessments have been made, which are therefore subject to challenge from taxpayers. This document aims to offer a legal classification of the contract, which is characterized by a complex structure, by operations that are not easily justifiable on the economic point of view and by a questionable (especially from a tax point of view) contractual regulation. The document is organized as follow. First, an analysis of the entire contractual regulation will be undertaken with particular focus to the main characteristics of the stock lending agreement which essentially consists in the lease of equity securities betting on their productivity. Secondly the entire structure of the relations between the parties will be analyzed with the aim to verify if this latter can be classified in one of the statutory categories of civil law or, instead, as an atypical contract should the analysis present differences with the general models of private contracts. In this latter situation it should be possible to identify the contract as a «recognizable» negotiation that can be collocated in the Italian legal system. In this perspective it will be analyzed if the contract of stock lending can be classified as a typical statutory contract, as it is often linked to the loan agreement disciplined under article 1813 of the Civil Code, or if it is ranked as an atypical contract because of its peculiarities not only in respect of its contracts terms, but also for its cause and for its combined nature that includes different elements within multiple contracts. The attempt will be to identify the utility of this civil qualification of the contract and the risks related to this kind of hermeneutic analysis. The next step will be the assessment of the contract from a lawfulness point of view. The aim of this analysis is to show, by taking into account the potential and apparent fraudulent nature of the contract, which are the most suitable sanctioning consequences and remedies applicable under the Civil Code. In particular, in this section, it will be observed that difficulties of interpretation of the contract revived the issue of the autonomy-dependency between civil and tax rules. The strong relationship between instruments of the fraud to the law, or of simulation or more in general civil rules that provide a remedy of invalidation, and instruments against tax avoidance, revives all the problems that authors and case law have faced in the past in order to adapt civil rules to the tax system that is based on different logics and requirements. It will be highlighted the importance to find, within the tax system, a general clause useful to avoid the drawbacks coming from the coexistence between different legal systems - such as civil and tax systems - and which, at the same time, can provide an effective means against the purpose of tax evasion related to the conclusion of the stock lending contract. In particular the recent codification of the principle of prohibition of abuse of rights, under article 10-bis of the Statuto dei diritti del contribuente, can be seen in this perspective. This principle may be used as a general rule to sanction artificial contractual structures that the tax law wants to block on the basis of the fundamental constitutional rule based on the ability to contribute. Nowadays the entire European and International communities feel the need to introduce a regulatory instrument in national legislation with the aim to avoid the abuse of rights. In this regard there are two European directives - so called ATAD I and ATAD II - and a recent decree for their implementation, that are in line with the historical and juridical changed context. The presence of a supranational regulation concerning the general category of abuse of rights shows the crucial role that procedures related to aggressive tax planning play nowadays, not only on a national point of view but also on a global point of view. In conclusion, our analysis will be addressed to an effective evaluation of the typical operations of the stock lending contract by looking also at the new parameters that are now offered by the current rules concerning the abuse of rights. It will be explored if these operations might counteract general principles about the right level of taxation and if they are fiscally unenforceable, or if, whenever the opposite cannot be demonstrated, they can be considered fully valid and effective.

Il contratto di stock lending ha dato origine a numerose questioni interpretative relative alla corretta qualificazione giuridica della fattispecie negoziale ed ai possibili rimedi offerti dall'ordinamento per contrastarne gli effetti elusivi. La complessità delle operazioni sottese al contratto contribuisce a rendere ancora più incerta la sua collocazione nell'ambito delle tradizionali categorie civilistiche, con conseguente difficoltà nell'applicazione degli strumenti sanzionatori tipici dell'ordinamento privato. In tale prospettiva, l'individuazione di un rimedio generale proprio del sistema tributario nazionale quale l'abuso del diritto, fortemente valorizzato anche sul piano europeo ed internazionale, consente di risolvere numerose problematiche di carattere esegetico ed al contempo si coniuga maggiormente con le esigenze proprie del settore fiscale. Il presente contributo analizza le suddette questioni, confrontandosi anche con la tradizionale tematica relativa all'autonomia fra ordinamento privato e tributario e tentando di offrire una chiave di lettura più in linea con le attuali esigenze di contrasto delle fattispecie di elusione fiscale avvertite in ambito nazionale ed internazionale.