5/30/2019

Innovative Start-Ups in the state of liquidation can remain in the register
Angelo Busani - Elisabetta Smaniotto

If the Innovative Start-up is put into liquidation, it must, as a rule, be deleted from the special section of the Commercial Register. It may, however, remain registered there if, in the dissolution resolution (or in the Chamber of Commerce forms) it is pointed out that, despite the state of liquidation, there is a "going concern forecast". This was stated by Mise in an opinion of 27 May (prot. no. 133793) issued to the Pordenone-Udine Chamber of Commerce.

The Companies' Register had in fact raised the question of whether, in the event of the liquidation of an Innovative Start-up, it should present a request for cancellation from the special section of the Register, given that the company had suggested that production activities could resume in the short term. The Mise, in its opinion, observes that, in fact, the state of liquidation is against one of the main assumptions on the basis of which a company can acquire the status of Innovative Start-up, namely the fact that its object is "exclusive or prevalent, the development, production and marketing of innovative products or services with high technological value" (Article 25, paragraph 2, letter f) of Decree 179/2012).

In fact, when a company is dissolved, the liquidation phase begins, which entails "stopping the activity of the planning and production phase", in line with the general principle that the state of liquidation is not aimed at carrying out new business acts (prohibited, under penalty of liquidators' liability), but at carrying out the activities to meet the company's liabilities and distribute the remainder to shareholders. This is, however, a rule that tolerates exceptions: it is not implausible to think that, even in the liquidation phase, there can be a situation of going concern, both for the purposes of carrying out the liquidation activity and in anticipation of a return to bonis and, therefore, a revocation of the state of liquidation. If, therefore, the Start-Up indicates this particular condition, it is admissible for it to remain registered in the special section; failing this, it is inevitable that the Company Registrar will proceed with the cancellation of the Start-Up from the special section either at the request of a party or on its own initiative.

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