The Protector and the Disregarded Trust

Andrea Vicari’s New Book, published by Giuffrè.

The protector is a relatively “new” figure within the context of trusts, having emerged in contractual practice only in recent decades.

Few governing laws offer a comprehensive regulation of this role, and in many legal systems, its regulation is left to sporadic judicial interventions.
At the international level, there are no studies dedicated to individual jurisdictions that aim to provide a systematic interpretation of the role.
In the Italian context, there is a lack of doctrinal framing of the protector within the categories of civil law.
This has led to a fundamental misunderstanding of the figure, particularly in the area of tax law, where the protector has at times been invoked to support claims of sham trust structures—based on broad, discretionary interpretations that often disregard the applicable governing law and, occasionally, even the Italian tax code.

This book aims to situate the protector within the framework of Italian civil law theory, by comparing the legislation of San Marino and Jersey.

The former is characterized by a comprehensive and systematic civil-law-oriented regulation, which invariably qualifies the protector as the holder of a private law office. The latter, in contrast, is marked by an absence of statutory provisions and a fragmented, inconsistent body of case law, allowing for a dualistic interpretation of the guardian’s role.

Accordingly, the history and notion of the “disregarded trust”—a concept lacking any firm legal foundation—are reexamined. The work proposes its replacement with two alternative categories: the non-tax-subject trust (as per Article 73 of the Italian Consolidated Income Tax Act), and the simulated or disregarded trust (pursuant to Article 1414 of the Civil Code and Article 37 of Legislative Decree No. 600 of 29 September 1973). It is demonstrated that, insofar as the protector is understood as holding a private law office, the scope of their powers is irrelevant for both categories.

The volume is complemented by a collection of newly drafted clauses consistent with the proposed reinterpretation, as well as the full text of the relevant case law precedents.

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