Key Points
- Those who have received shares by gift exempt from tax may contribute them to a personal holding company even before the five-year monitoring period has elapsed.
- No automatic forfeiture of the relief under Article 3, paragraph 4-ter, of the Italian Inheritance and Gift Tax Act (TUS), provided that the beneficiary retains legal control of the company, including indirectly.
- This was clarified by the Italian Revenue Agency (Agenzia delle Entrate) in tax ruling (risposta a interpello) no. 152 of 31 July 2026, one of the first applications of the rules rewritten by dlgs 139/2024.
- The key passage: the five-year undertaking concerns the retention of control, "without any obligation to retain ownership" of the individual shares.
- Article 16, paragraph 1, of legge 383/2001 nevertheless remains applicable: a disposal to third parties within five years brings the gain accrued by the parent back into charge in the hands of the donee.
A generational transfer does not freeze the family business in place. Those who have received shares by gift exempt from tax may, even before the five-year monitoring period has elapsed, contribute them to a personal holding company and dispose of a minority interest to third parties: there is no automatic forfeiture of the relief under Article 3, paragraph 4-ter, of the TUS, provided that the beneficiary retains legal control of the company, including indirectly. This was clarified by the Italian Revenue Agency (Agenzia delle Entrate) in tax ruling (risposta a interpello) no. 152 of 31 July 2026, one of the first applications of the rules rewritten by dlgs 139/2024 to a gift that increases an existing controlling interest.
The position following the Revenue Agency's ruling
| Transaction during the five-year period | Gift tax exemption (Article 3, paragraph 4-ter, TUS) | Points requiring attention |
| --- | --- | --- |
| Contribution of shares to a personal holding company (Article 177, paragraph 2, Italian Income Tax Code (TUIR)) | No automatic forfeiture: control, including indirect control, is sufficient (Article 2359, first paragraph, no. 1, and second paragraph, Civil Code) | Retain control of the recipient company and, through it, of the investee company throughout the five-year period |
| Disposal of a minority interest to third parties | No forfeiture if legal control is retained | Substitute tax on capital gains "as if the gift had not been made" for disposals within five years of the gift (Article 16, legge 383/2001) |
| Loss of control | Forfeiture: tax at the ordinary rate, penalty under Article 13 of dlgs 471/1997 and late-payment interest | The five-year period runs from the date of each transfer qualifying for relief |
| Declaration of undertaking | Subject matter: retention of control, not ownership of the individual shares | To be made at the time of the gift, the inheritance tax return or the family agreement |
The case
The case concerns an entrepreneur who became the sole shareholder of the family group's parent company following a fifteen-year process of acquiring shares. Originally, the company was owned 93% by his father, 2% by his mother and 5% by the applicant; in 2011, his father gifted him 23%, without tax because the gift fell within the tax-free allowance under Article 56 of the TUS applicable at the time; in 2020, he received 30% from his father and 2% from his mother, exempt under Article 3, paragraph 4-ter, acquiring control with a 60% interest; finally, in 2025, the applicant purchased 5% from his father subject to a retention-of-title clause and received the remaining 35% by gift, increasing his existing controlling interest, with an undertaking to retain it until June 2030. The proposal now under consideration is to contribute at least 70% of the shares to a newly incorporated personal holding company under the controlled realisation regime pursuant to Article 177, paragraph 2, of the TUIR, and then dispose of a minority interest of between 20% and 30% to third parties, all while the monitoring period is still running.
The rule following the reform
Dlgs 139/2024 rewrote the exemption, clarifying its scope and conditions: the relief is available both where the transfer results in the acquisition of control under Article 2359, first paragraph, no. 1), of the Civil Code and where it "increases an existing controlling interest" (a situation which the ruling itself presents as resulting from the extension introduced by the amendment, although the previous wording already referred to control being "acquired or increased"), without changing the rationale, recalled as early as circular no. 3/E of 2008, of "facilitating the generational transfer of family businesses". The explanatory report emphasises the intention to define precisely the scope and conditions for each type of transfer qualifying for relief. For companies with share capital, there is only one condition: the transferees must retain control for a period of no less than five years from the transfer, making a specific declaration of undertaking at the time of the transaction. A breach is costly: forfeiture, tax at the ordinary rate, a penalty under Article 13 of dlgs 471/1997 and late-payment interest.
The requirement attaches to control, not to the shares
The key passage in the ruling lies in the distinction between control and ownership. The five-year undertaking concerns the retention of the former, "without any obligation to retain ownership", and therefore without any prohibition on disposing of the interests acquired under the exemption, whether in a single transaction or through successive increases. Circulars no. 3/E of 2008 and no. 18/E of 2013 had already clarified that contributing the interest to another company "does not give rise to automatic forfeiture", provided that the same beneficiary retains or increases a controlling interest in the companies involved in the transaction. The assessment also takes account of the second paragraph of Article 2359, which includes voting rights held by controlled companies, fiduciary companies and interposed persons: indirect control is therefore sufficient for the donee, as already stated in ruling no. 11 of 20 January 2026, following resolution no. 75/E of 2010 and ruling no. 72 of 2024. Hence the acceptance of the holding company structure: no automatic forfeiture, provided that the applicant retains the control required by law both in the recipient company and, through it, in the operating company until June 2030.
FIFO or LIFO: a false problem
The applicant had also raised a nuanced question: which shares should be regarded as contributed or disposed of, the oldest (the FIFO method) or those most recently received (LIFO), in the light of Article 67, paragraph 1-bis, of the TUIR, under which the most recently acquired securities are deemed to be disposed of first. The Agency does not take an express position on this point, but within the reasoning of the ruling the question loses relevance for gift tax purposes: if the requirement attaches not to the individual interests but to the controlling position, identifying which shares leave the estate is immaterial for the purposes of forfeiture, and the opinion covers the transaction as proposed, including the shares received under the most recent gift, while monitoring is still ongoing. The applicant's argument that paragraph 1-bis operates solely as a cost criterion rather than as a means of selecting the shares subject to the "requirement" thus emerges from the ruling unchallenged.
The aftermath: the donor's capital gain returns
Identifying the shares disposed of nevertheless becomes central again on another front, which the Agency mentions for completeness: Article 16, paragraph 1, of legge 383/2001. The recipient of a gift of transferable securities falling within the scope of the substitute tax under Article 5 of dlgs 461/1997 who disposes of them within the following five years is liable to substitute tax "as if the gift had not been made", with a credit for any taxes paid: an anti-avoidance provision, as clarified by circular no. 91/E of 2001, which prevents an exempt gift from being used to eliminate the donor's latent capital gain. In other words: a disposal to third parties within five years does not result in forfeiture of the gift tax exemption, but brings the gain accrued by the parent back into charge in the hands of the donee. The ruling refers to the provision applying to a disposal made "within five years following the date of the most recent gift received", without distinguishing between the different tranches; the wording of Article 16, which looks at the securities covered by each gift, nevertheless suggests a transaction-by-transaction calculation: on this view, the shares received in 2011 and 2020 would fall outside its scope, unlike the 35% received in 2025. Pending confirmation, scheduling and documenting the sequence of disposals remains the real crux of planning.
Practical precautions
The general preliminary caveat remains: the ruling assumes without examination that the conditions for relief are met and that the proposed transactions are lawful, without prejudice to the tax authorities' power to scrutinise them.
For practitioners, there are three safeguards: declarations of undertaking framed around the retention of control rather than ownership of the individual shares, documentary evidence of the chain of ownership following the contribution, and a disposal timetable aligned with the two separate five-year timeframes, namely the TUS monitoring period and the periods applicable to each individual transaction under Article 16 of legge 383/2001.
Frequently Asked Questions
Can shares received by gift be contributed to a holding company without losing the exemption?
Yes. According to tax ruling (risposta a interpello) no. 152 of 31 July 2026, there is no automatic forfeiture of the relief under Article 3, paragraph 4-ter, of the TUS, provided that the beneficiary retains legal control of the company, including indirectly, throughout the five-year period.
What does the five-year undertaking concern?
The retention of control, "without any obligation to retain ownership" of the interests acquired under the exemption: there is therefore no prohibition on disposing of individual shares, provided that the beneficiary retains the controlling position.
Is indirect control sufficient?
Yes. The assessment also takes account of the second paragraph of Article 2359 of the Civil Code, which includes voting rights held by controlled companies, fiduciary companies and interposed persons: indirect control is therefore sufficient for the donee, as already stated in ruling no. 11 of 20 January 2026.
What happens if control is lost during the five-year period?
The relief is forfeited, with tax charged at the ordinary rate, the penalty under Article 13 of dlgs 471/1997 and late-payment interest.
Does a disposal to third parties within five years have other tax consequences?
Yes, in relation to capital gains: under Article 16, paragraph 1, of legge 383/2001, a donee who disposes of the securities within the following five years is liable to substitute tax "as if the gift had not been made", with a credit for any taxes paid.
Giancarlo Marzo — Marzo Associati, law and tax Firm. Article published in ItaliaOggi Sette on 17 August 2026.
