Il merger leveraged buyout tra legittimazione giuridica e profili problematici

The corporate transactions traditionally identified as mergers and acquisitions activities are particularly important in the study of phenomena related to the industrial and financial restructuring. Falls within the above activities, which in their structure appear undeniably complex , the financial transaction of leveraged buyouts , which , from the second half of the eighties , has had a great spread as , the changing international economic environments have a strong acceleration in termination corporate restructuring carried out with the clear objective of reaching an outcome dimensional as to be able to effectively compete in the free market. It is evident that this operation presents a significant risk factor , as structured on a high level of indebtedness , the success of which is subjected to the perfect agreement between the many actors who , for various reasons , are taking part , namely: the merchant bank , which plays the role of coordinator of the entire maneuver ; credit institutions , ranging to provide the necessary funding , administrators , involved in governance issues relating to the acquisition and subsequent merger of the companies involved in the . acquisition technique , described as leveraged buyouts , developed in Anglo-Saxon countries , and particularly in the United States , starting with the end of the seventies , such as the development of a specific phenomenon characterized by the purchase of shares of a public company by a few " investors ' private (so-called going private ) . Subsequently, it has evolved into a financial technique of acquiring particularly frequent and effective until the first half of the nineties , during which , however, due to a combination of factors such as the economic crisis or the rise in interest rates, lost relief flowing in a series of failures in both the United States and in Europa.Tutto this has led to attitudes of suspicion and aversion biased against the legitimacy of this operation , following the interpretation that part of the Italian doctrine proposed , the main legal, economic and fiscal closely related to it. Although the case law , concerning the lawfulness of such maneuvers , after some negative judgments , has subsequently changed orientation in the sense of believing the transactions concerned lawful provided they have a valid "business reason" . In the wake of these concerns and in order to resolve doubts about the legality of the leveraged buyout , the legislature of the Corporate Law Reform introduced into Italian law a positive discipline to do this: it is, as you know, art. 2501 bis of the Civil Code, which regulates the LBO implemented through the merger ( the so-called merger levereged buyout ) . It is , thus , put an end to a conflict , constant doctrine , as to the legality of the maneuver in question, currently due to mergers occurring as a result of the acquisition with debt . In particular , the " leveraged buyout " was considered , as a great part of the doctrine longer dating , illegal , being contrary to the original provisions of art. 2358 . civ . , that " the company can not make loans, nor provide security for the purchase or subscription of shares. Society can not , either directly or through trust companies or nominees, to accept its own shares as collateral ." Of is particularly important in this regard to the case law that has ruled on the matter, at first in a negative sense , but then , in the sense of believing lawful operations MLBO provided they have a valid "business reason" , being necessary therefore , an investigation into the concrete , ensure the lawfulness of the operation in each case, namely an investigation that verifies the existence or otherwise of an intention to evade the rule in art . 2358 . Civil Code . On this last aspect and for the considerable profiles of concern it raises in relation to status, or lack of a drawing elusive , we will focus in this paper , by examining , first , the morphology of civil and subsequently more closely the features of the tax ' institute in question.