The classification in the financial statements of sums paid by shareholders must reflect the actual legal and economic nature of the transaction. Therefore, directors are not permitted to arbitrarily transfer an amount from liabilities to equity when the item has been qualified for years as a shareholder loan and in the absence of a formal waiver by the latter. This principle emerges from the ruling of the Court of Ancona, Specialized Business Section, February 3, 2026, no. 246, which declared the resolution approving the 2023 financial statements of a joint-stock company null and void.
The case examined
In the financial statements subject to the dispute, an amount equal to 1,815,521 euros, previously shown under payables to shareholders for loans, had been transferred to equity under the heading “contribution reserve”. The Court deemed this reclassification unlawful, noting that the sums had been accounted for as loans in the financial statements from 2014 to 2022 and were supported by acknowledgments of debt and previous procedural conduct by the company itself. In the 2023 financial statements, however, these amounts had been transformed into the aforementioned reserve without any legal transaction occurring that was suitable to modify their original cause.
Technical discretion meets precise limits
The preparation of financial statements involves technical assessments, but such discretion is not unlimited. Every choice must respect the principles of clarity, truthfulness, and fairness provided for by Art. 2423 of the Civil Code. Therefore, in this regard, directors are not the arbiters of either the original recording of shareholder payments or the subsequent modification of the relative item, as the accounting representation must correspond to the actual nature and concrete cause of the contribution.
Furthermore, the principle of clarity takes on independent significance. The financial statements must allow shareholders and third parties to understand the company’s financial, economic, and asset position. Mere numerical correctness is not sufficient if the classification of line items provides a misleading representation.
Loans, contributions, and capital payments
The decision in question recalls the traditional distinction between the different forms in which the shareholder’s “payment” is categorized, namely:
- contributions;
- shareholder loans;
- non-repayable or capital account payments;
- payments intended for a future capital increase.
A loan has the nature of a mutuum and grants the shareholder a right to repayment, which must therefore be recorded under liabilities. A non-repayable or capital account payment, on the other hand, is definitively acquired by the company’s assets and must be recorded under reserves.
To correctly qualify the payment, the name used in the accounting records is not sufficient. It is necessary to examine the will of the parties, the actual behavior, the purposes of the transaction, the financial statements, the statutory clauses, and any other useful element. It follows that a line item cannot be transformed from a loan to a reserve through a simple accounting decision; a suitable legal title is indeed necessary, such as, for example, a waiver of the credit or a capitalization agreement.
Subordination does not transform credit into capital
A further aspect addressed by the ruling concerns the subordination of shareholder loans. Even when the conditions provided for by Art. 2467 of the Civil Code are met, the loan retains its nature. Subordination only affects the order of repayment and does not involve the transformation of the credit into a contribution or an equity reserve. Therefore, not even the fact that the loan was granted in a situation where a contribution would have been reasonable authorizes the directors to unilaterally reclassify it into equity.
Continuity of accounting criteria
The Court also emphasized the principle of continuity provided for by Art. 2423-bis, paragraph 1, no. 6, of the Civil Code. Valuation and classification criteria cannot be freely modified from one financial year to another. Derogations are permitted only in exceptional cases and must be adequately justified in the explanatory notes, with an indication of the effects on the financial, economic, and asset position and on the economic result. In the case examined, the different recording was justified neither by a change in the cause of the transaction nor by exceptional circumstances suitable for derogating from the continuity of accounting criteria.
Consequences for the validity of the financial statements
Reclassification from debt to equity does not constitute a mere formal variation, as it reduces indebtedness, increases equity, and modifies the representation of the company’s financial structure. For the Court, this alteration resulted in a violation of the rules for preparing financial statements and, consequently, the nullity of the shareholders’ resolution of approval. The company’s subsequent decision to restore the classification as a loan in a future financial year was not considered curative, given that it did not correct the challenged financial statements.