The Italian Revenue Agency, by the Circular no. 19/E of May 6th 2015, focused its attention on providing new instructions and explanations about the transaction tax, also in the light of both the recent regulatory changes and the principles stated by the legitimacy and merit jurisprudence. The transaction tax, stated under the article 182-ter of the Royal Decree of March 16th 1942, no. 267 (Bankruptcy Law), is a particular transaction proceeding between taxpayer and Revenue Agency.

 

It may autonomously integrate the plan provided for in Article 160 of the Bankruptcy Law, without prejudice, however, to the feasibility control of the Court.

 

The purpose of the transaction tax consists in the need of the debtor to obtain the so called “debt consolidation”, as a certification attesting the amount of the debt’s sum that has been registered or suspended (article 182-ter.2 of Bankruptcy Law). By this way, the debtor could propose a partial payment or a deferred one (concerning VAT and withholding tax, that are not still payable) and the bodies of the bankruptcy proceeding could evaluate the feasibility of the proposal with particular regard to the necessary resources to write off the debts.

 

By the circular no. 19/E, the Italian Revenue Agency has clarified if the transaction tax should be mandatory or not on the basis of the principles stated by the Supreme Court. More specifically, by the judgements n. 22931 and 22932 of 2011, the Court of Cassation addressed the issue of the eligibility of a composition agreement (it. concordato preventivo) based on the tax claim’s reduction, event without a transaction tax. It has been stated that the submission of the transaction tax application is not mandatory for the debtor who is focused on the tax claim’s reduction and, by this way, it does not constitute an eligibility condition for the concordato preventivo proposal. If the transaction tax is mandatory, in fact, it would be necessary to demonstrate the existence of an interest of the Italian Revenue Agency worthy of protection. Such interest is not appreciable, as long as the agency, even in the lack of ruling, is not undermined in its right to base its claim and pursue both the recognition and the satisfaction.

 

In conclusion, the Tax Authority considers that the transaction tax application, as submitted by the debtor, is not an eligibility condition of the concordato preventivo proposal; by this way it go beyond the former circular no. 40/E of 2008. Further these clarifications, the Italian Revenue Agency, by the circular n. 19/E, is also focused on all those proceeding stated under the Law no. 3/2012, so called over-indebtedness proceedings.