Bilancio d'esercizio e determinazione dell'utile distribuibile: un legame che si è rotto
Maria Di Sarli, Ricercatore di Diritto commerciale presso l’Università di Torino.
L’introduzione degli IAS/IFRS e la modificazione delle direttive contabili ha comportato l’adozione di criteri di valutazione che conducono alla iscrizione in bilancio di utili non realizzati, ponendo il problema della corretta determinazione degli utili distribuibili. Mancando al riguardo una disciplina armonizzata all’interno dell’Unione Europea, si sono originate delle disarmonie tra i diversi Paesi membri. Nell’ottica di un’armonizzazione, si ritiene che la soluzione adottata dal legislatore italiano possa rappresentare un modello di riferimento.
The application of the IAS/IFRS, implying the substantial downgrading of the realization principle, makes financial statements not fully suitable for the determination of distributable profits. The introduction of a uniform European regulation seems desirable. The presence of different rules in the various Countries is likely to create disharmony with regard to the level of protection of creditors. In light of the freedom of establishment granted to European companies that could trigger competition among legislative frameworks. The Italian solution seems to be a good model to follow.
1. Accounting regulation in Italy
Since the 2005 the Italian accounting regulation has been composed of two distinct accounting systems.
The first one is composed by the Civil Code rules (artt. 2423-2435 ter), interpreted and integrated by the Ita-Gaap issued by the Italian standard setter “Organismo Italiano di Contabilità – OIC”. The last reform of this system is due to the d.lgs. n. 139/2015 with which the EU Accounting Directive (2013/
34/EU) was implemented in Italy.
The second one is composed by the IAS-Regulation, that is IAS/IFRS principles, Regulation (EC) 1606/2002 and d.lgs. n. 38/2005. The application of these rules is mandatory only for some categories of companies, essentially, listed companies; companies with widespread financial instruments and banks (art. 2, d.lgs. n. 38/2005) both for the individual and consolidated financial statement.
The small and medium companies are not allowed to apply IAS/IFRS (art. 2, lett. f), d.lgs. n. 38/2005), while the remaining companies have the right to apply IAS-Regulation (artt. 3 and 4, d.lgs. n. 38/2005).
The relevant profile from the perspective of this report is that the individual financial statement prepared in accordance with IAS/IFRS principles absolves both the informative e organizational function, in other words the IAS/IFRS financial statement as the ITA-GAAP financial statement represent alike the reference basis to determine the distributable profits.
2. Dividend distribution regulation in Italy
As just specified, in the Italian legislative framework, regardless of the accounting system used, the individual financial statement is the “reference basis” for ascertaining that, as a result of capital allocation to shareholders – both in the form of profit distribution or as buy-backs – the company’s net assets do not fall below liabilities, thus compromising the right of creditors to satisfy themselves in advance with respect to shareholders. This calculation technique is known as “balance sheet test”.
This functional link between annual financial statement and distributable profits is established by art. 2433 of the Italian Civil Code, which states: “no dividends may be paid on shares except for those emerging from profits actually earned and resulting from the regularly approved financial statements”.
The determination of distributable profit represents an organizational purpose which affected and still does the Italian accounting rules, in fact, usually, such determination is already pursued during the preparation of financial statements, through compliance with the prudence principle and other principles related to revenue realization and anticipation of losses . On the basis of this set of principles, the key evaluation criterion is the one of the historical cost, in application of which the profits with respect to initial costs can be recorded in the financial statements only if they result from exchanges with foreign economies and give rise to immediate monetary income or credits. On the other hand, losses are recorded in the financial statement even if only presumed or probable .
In Italy, this traditional accounting approach is no longer fully used following the introduction of IAS/ IFRS principles, both directly and indirectly.
Directly as the Italian lawmakers, as anticipated in the previous paragraph, have exercised the option provided by Article 5 of the European Regulation 1606/2002 to extend the scope of application of the IAS/IFRS principles also to financial statements of certain categories of companies .
Indirectly, as the European institutions, in order to render IAS/IFRS financial statements more comparable with those drawn up in compliance with the European rules, have, on several occasions, amended the IV and VII Directives until definitively repealing them with EU Directive 2013/34, which, as it is well known, has introduced some IAS/IFRS rules to the principles of the European accounting system. The reference is in particular to the fair value evaluation.
However, in Italy the fair value evaluation has not been largely implemented, essentially, it is established only for the derivative and hedging instruments (art. 2426, 11 bis, Civil Code).
3. Financial statement and determination of distributable profit: a bond that has been broken
The IAS/IFRS principles, as specified in the related framework, give the financial statements a primarily informative function and do ..