Excerpt from the article published in the online journal “Fiscalità Patrimoniale”, by Leonardo Arienti, Solicitor in Italy
1. Preliminary Remarks
The family holding company is one of the legal tools most commonly used for wealth, succession and tax planning aimed at facilitating generational succession within family-owned business groups.
It enables the concentration of control over equity interests, the preservation of unity in decision-making, and the orderly, stable and tax-efficient planning of the intergenerational transfer of corporate control and governance—together with the related income streams.
In this context, splitting full ownership of an equity interest into bare ownership and usufruct, with the possibility of allocating voting rights between the usufructuary and the bare owner, represents one of the most flexible legal techniques for tailoring and optimising intra-family generational succession.
2. Equity Interests Between Usufruct, Bare Ownership and Voting Rights
Under Italian civil law, ownership may be divided into two legal positions: bare ownership and usufruct. The former retains ultimate title to the asset, whilst the latter confers the right to enjoy the asset and to collect its fruits, in accordance with the general regime set out in Articles 978 et seq. of the Italian Civil Code. Academic commentary tends to emphasise usufruct as a technique allowing economic powers (utilities and fruits) and legal powers (title) to be separated and allocated to different persons.
When applied in a corporate setting, this split may concern equity interests and becomes a form of contractual engineering: the parties’ rights are not fixed, but may be shaped through the terms of the disposition (gift, will, sale, transfer or contribution to a trust) and, where necessary, through the company’s articles of association. This makes it possible to structure highly bespoke arrangements affecting both governance rights (first and foremost voting) and economic rights (profits, reserves, etc.), potentially—within the limits permitted—shifting the centre of control towards the bare owner or directing specific economic benefits to either party.
From a statutory perspective, for capital companies usufruct is expressly regulated: for joint-stock companies (S.p.A.) by Article 2352 of the Civil Code and for limited liability companies (S.r.l.) by Article 2471-bis, which broadly refers to the rules governing shares. For partnerships, although there is no specific statutory regime, usufruct is generally regarded as admissible, but in practice requires unanimous consent (as it entails an amendment to the partnership agreement) and remains subject to the rules specific to the relevant type of partnership, including those relating to succession to the partnership position and to the liability regime applicable to managing partners.
As regards S.p.A.s, Article 2352 sets out a “three-tier” allocation:
- certain rights typically belong to the usufructuary (including, unless otherwise agreed, voting rights and the extension of usufruct to new shares issued in the case of a bonus issue);
- certain economic rights remain with the bare owner (such as pre-emption/subscription rights and, more generally, the consequences of a paid-in capital increase);
- other governance rights (other than voting) may be held concurrently and may be exercised independently.
Finally, precisely because the corporate regime is concise, for matters not expressly regulated it is necessary to revert to the general provisions on usufruct (Articles 978 et seq.), which provide the systematic framework for completing the regime and dealing with situations not expressly addressed by the special corporate rules.
3. The Usufructuary’s Entitlement to Profits
The economic rights of a usufructuary over equity interests are not expressly and comprehensively regulated by the Civil Code.
Unless the parties agree otherwise, the general rules on usufruct apply (Articles 978 et seq.) together with Article 981(2), which provides that the usufructuary is entitled “to derive from the asset every utility it can provide” (F. De Martino).
Accordingly, the general entitlement to civil fruits under Articles 978 and 820 must, in a corporate setting, be understood as the right to profits earned by partnerships and profits distributed as dividends by capital companies.
Two interpretative approaches have emerged as to the legal character—and, more precisely, the allocation between bare owner and usufructuary—of profits set aside as reserves and distributed at a later stage.
A first approach holds that, once allocated to reserves, such profits lose their nature as civil fruits and, by being incorporated into shareholders’ equity, take on the civil-law character of capital. On that basis, if such amounts are subsequently distributed, Article 1000 of the Civil Code (collection of capital subject to usufruct) would apply (Interregional Committee of the Notarial Councils of the Tre Venezie, Corporate Orientation H.I.27, first published 09/2017).
A second approach—considered preferable, as being more consistent with the structure and rationale of usufruct—interprets “fruit” broadly, so as to include any utility within the meaning of Article 981(2) arising from the asset burdened by the real right. On this view, the usufructuary’s entitlements cannot be confined to dividends only, as no statutory provision mandates such a limitation.
This second approach is further supported by (i) the absence, in the context of equity interests, of any express reference to Article 1000, and (ii) the significant structural differences between debt instruments (to which Article 1000 is directed) and equity interests. These differences relate not only to certainty and liquidity, but also to enforceability and the substantive content of the respective legal positions, making an analogous application of Article 1000 to the distribution of corporate profits impracticable.
From this standpoint, every economic benefit linked to the equity interest—including distributions out of reserves or other equity-based distributions—constitutes a civil fruit and, during the term of the usufruct, accrues to the usufructuary, irrespective of the accounting or civil-law label attached to the amount paid.
Recent Supreme Court tax case law has endorsed this second approach in a series of “twin” judgments: sums distributed by a capital company whose shares were held in usufruct—originating from liquidation proceeds and attributable to shareholders’ equity—were treated as civil fruits belonging to the usufructuary (Supreme Court, Tax Chamber, Section V, 24 April 2024 no. 11152; 26 April 2024 no. 11170; 29 April 2024 no. 11375).
In any event, it is advisable to regulate contractually, when the usufruct is created or transferred, the allocation of distributions out of profit reserves, in order to prevent potential disputes between the parties.
4. Voting Rights Between Usufructuary and Bare Owner
Although voting rights are, as a matter of statutory default, attributed to the usufructuary, Article 2352 allows derogation: by agreement between the parties and/or through the company’s articles of association, voting rights may be allocated to the bare owner.
This statutory flexibility permits extensive “bespoke” solutions. By way of example, the bare owner may be granted veto or direction rights in relation to voting, voting rights may rotate (among multiple bare owners or between bare owner and usufructuary), or voting may be allocated depending on the type of meeting or the matters on the agenda.
On this basis, an arrangement—co-ordinated with the articles of association—would be entirely workable whereby voting rights are generally attributed to the bare owner, save that voting on profit distributions is reserved to the usufructuary, consistently with the usufructuary’s entitlement to enjoyment and fruits.
5. The “Other” Governance Rights of Usufructuary and Bare Owner
The “other” governance rights referred to in the final paragraph of Article 2352 are those that may be exercised concurrently by both the bare owner and the usufructuary. They include all governance rights attached to the equity interest other than voting rights, and which are not of an economic nature.
The same bespoke logic discussed for voting applies here as well, bearing in mind that the breadth and intensity of members’ rights differs depending on the company type: in S.r.l.s members’ rights tend to be more incisive, whereas in S.p.A.s they are more procedural and mediated by the corporate structure.
By way of example, such rights include: information and inspection/access rights; the right to examine financial statements and documentation in advance, as well as merger/demerger plans; the right to report censurable matters to the statutory auditors and to apply to the court in cases of serious irregularities; the right to seek the ascertainment of a ground for dissolution; and the right to challenge voidable or null members’ resolutions (under the relevant provisions applicable to S.p.A.s and S.r.l.s).
Although often regarded as “secondary”, these rights may also be contractually tailored between transferor and transferee, calibrating who may exercise them and subject to what limits, consistently with the articles of association and the relevant statutory regime.
6. Family Holdings and Stability in Generational Succession
The solutions described allow a high degree of tailoring of the equity interest held through the holding company, with particularly significant advantages for family holdings. By shaping usufruct, bare ownership and voting rights to suit family needs, it is possible to plan a gradual generational succession which provides economic stability for the transferor whilst ensuring continuity in the ownership structure.
A commonly used model involves the founder reserving usufruct whilst transferring bare ownership to descendants: this allows the founder to retain enjoyment and economic benefits, whilst progressively integrating the next generation into governance. The ability to transfer voting rights gradually over time further facilitates an orderly transition, enhances the next generation’s responsibility, and avoids disruptive management discontinuities.
7. Tailoring Usufruct and Voting Rights for Inheritance and Gift Tax Exemption
From a tax perspective, the amendment to Article 3(4-ter) of Legislative Decree No. 346 of 31 October 1990, introduced by Legislative Decree No. 139 of 18 September 2024, has clarified the requirements for the inheritance and gift tax exemption in connection with transfers of equity interests.
Whilst the subjective requirements remain unchanged, for capital companies the relief applies only to shareholdings through which de jure control is acquired or increased, within the meaning of Article 2359(1)(1) of the Civil Code. Such control must be maintained for at least five years, together with an undertaking by the transferee included in the deed of gift or in the family pact.
The exemption also applies where de jure control is achieved through the transfer of bare ownership to descendants together with the transfer of voting rights, whilst the transferor retains usufruct.
By Ruling (Interpello) No. 271 of 27 October 2025, the Italian Revenue Agency clarified that de jure control also exists where the transferee holds the necessary votes “by virtue of shareholders’ agreements or by-law provisions” granting a majority for ordinary resolutions.
Accordingly, the exemption applies not only to transfers of full ownership, but also where the transferor retains usufruct and transfers bare ownership together with voting rights to descendants, including cases of co-ownership of the relevant rights exercised through a common representative (see also Ruling No. 72 of 18 March 2024).
8. Conclusions
The interplay between civil law, company law and tax law in structuring ownership within a family holding company makes it possible to design highly tailored legal arrangements aimed at enhancing the stability of generational succession.
The division of full ownership into usufruct and bare ownership, combined with the allocation of voting rights, has become an established wealth and succession planning technique, capable of translating the complexity of family, patrimonial and intergenerational relationships into a structured and durable framework.
In this perspective, the civil-law advantages achievable through planning at the family holding level are complemented by a particularly favourable tax environment, allowing exemption from inheritance and gift tax where the requirements laid down in Article 3(4-ter) of Legislative Decree No. 346 of 31 October 1990 are satisfied.
