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Arrangement with creditors and tax debts

The application to prove debts in bankruptcy proceedings does not exempt from paying any overdue taxes after filing an appeal per art. 161 Bankruptcy law.

Attorney Luigi Tassinari reports on the recent judgment no. 9248 of 2.12.2021 (filed on 03.18.2022), with which the 3rd criminal division of the Supreme Court ruled on the relationship between tax offences due to failure to pay (in this case, failure to pay VAT pursuant to art. 10 ter of legislative decree no. 74/2000) and insolvency procedure.

More specifically, the Court has endorsed the view that has become prevalent in recent years, according to which the arrangement with creditors does not inhibit – in principle – the payment of tax debts whose expiry date is subsequent to the filing of the application. and prior to the adoption of the decree for admission to the insolvency procedure (ex multis Cass., Division III, 20.2.2020, no. 13628, Rv. 279421).

Indeed, by adopting this interpretative approach, which finds its legal basis in the provisions of art. 161, par. 7, and 167 of Bankruptcy Law, the 3rd Division has established that “the procedure of arrangement with creditors eliminates the offence of failure to pay, in relation to obligations that have expired between the submittal of the application for admission to the arrangement – either ‘with rights reserved to file ancillary documents at a later date’ or with by filing the arrangement – and the adoption of the relevant decree, only where a court order has taken place which has prohibited, or in any case has not authorized – as requested by the interested party instead -, the payment of the aforementioned debts, as, in this case, an exemption to fulfil a duty imposed by a legitimate order of the authority pursuant to art. 51 of the penal code may be envisaged.”

Thus, with the recent decision under review, the most protective stance was not taken, which however remained a lesser stance with the Supreme Court (see Cass., Section III, 2.4.2019, no. 36320, Rv. 277687), whereby if the debtor has been admitted – before the tax debt expires – to the arrangement with creditors with deferred and / or partial payment of the tax, the non-fulfilment of the fiscal obligation is punishable by the aforementioned art. 51 of the penal code.

The Court decided not to adhere to this jurisprudential view, also due to the fact that it “would risk … allowing the self-serving use of the application for an arrangement with creditors for the sole purpose of avoiding criminal liability for tax breach, virtually defining  it as a purely potestative condition of non-punishment “.