The third “tax collection settlement procedure” according to D.L. 119/2018

The Article 3 of the D.L. 119/2018 introduced the possibility of benefiting from the third “tax collection settlement procedure” for payment demands entrusted to the Collection Agent between 1st January 2000 and 31th December  2017, also in case of bankruptcy and restructuring proceedings under judicial oversight.

The legal framework specified that to the amounts for tax collection settlement procedure, in case of bankruptcy and restructuring proceedings, is applied the discipline of pre-paid credits according to Articles 111 and 111-bis of Royal Decree no. 267 of 1942.

The subscription of this procedure needs an opinion carried out by Bankruptcy Judge and creditors’ board regarding the convenience to widen the category of the pre-paid credits in favor of a reduction of the total credits, with the aim of not compromising the reasons of satisfaction of the other proceeding creditors.

As regards the admissibility of tax collection settlement procedure, in case of bankruptcy and restructuring proceedings, the Collection Agent, replying to questions formulated by the ODCEC during the previous procedure according to art. 6 D.L. 193/2016, had already confirmed the possibility for the bankruptcy trustee to be able to access to tax collection settlement procedure for payment demands  registered in statement of liabilities already approved. The trustee will be legitimated to present the application, subject to authorization by the Judge and creditor’s board.

On the practical side, however, the question arises of how to will operate if the tax credit, respecting the requirements for access to  tax collection settlement procedure according to the D.L. 119/2018, has been fully admitted, in terms of taxes, penalties and interest, into executive statement of liabilities.

Looking at assimilation of this application to settlement with the creditor pursuant article 35 of the Royal Decree, the bankruptcy trustee should necessarily inform in advance the Delegated Judge, according to paragraph 3 of the same article, and subsequently, pursuant to paragraph 1, should seek permission to proceed to the Creditors’s board, explaining the effective benefit of the application to tax collection settlement procedure.

In case of a positive opinion by Judge ad creditors’ board, the receiver should submit a judicial application pursuant to article 111 bis of Bankruptcy Law, to obtain authorization to pay a creditor outside the bankruptcy allotment plan.

Finally, he should present to the Court the request for the change of executive statement of liabilities, regarding to the credit under tax collection settlement procedure according to article 3 of the D.L. 119/2018.

For any further information please contact our Restructuring and Insolvency Team.