Codice della crisi · Ferrara
Adequate arrangements, alert signals, negotiated settlement, concordato and the treatment of tax debts under d.lgs. 14/2019 as updated.
Crisis is the state that makes insolvency probable, with prospective cash flows inadequate to meet the obligations of the following twelve months. Directors must act without delay when the signals listed by the Codice della crisi (the Italian business crisis and insolvency code) appear: arrears on wages, suppliers, banks, contributions and VAT.
Art. 2, comma 1, lett. a), del d.lgs. 12 gennaio 2019, n. 14 defines crisis as the state of the debtor that makes insolvency probable and that manifests itself in the inadequacy of prospective cash flows to meet obligations over the following twelve months. The duty to be equipped to detect it arises earlier: art. 2086, comma 2, of the codice civile, introduced by art. 375 del d.lgs. 14/2019, requires an entrepreneur operating in corporate or collective form to establish organisational, administrative and accounting arrangements appropriate to the nature and size of the business, including for the timely detection of crisis.
Art. 3, comma 4, of the Code lists the signals: wage debts overdue by at least thirty days and exceeding half of the total monthly wage bill; supplier debts overdue by at least ninety days exceeding the amount of debts not yet due; exposures to banks and other financial intermediaries overdue for more than sixty days, or exceeding the credit-line limit for at least sixty days, provided they represent altogether at least five per cent of total exposures; and the existence of one or more of the debt positions contemplated by art. 25-novies. A signal is not a diagnosis: it is the obligation to look.
Legal references: artt. 2, 3, 25-novies, 375 d.lgs. 14/2019; art. 2086, comma 2, c.c.
judicial liquidation and tax debts
Alerts come from the supervisory body, if appointed, and from the qualified public creditors: INPS, INAIL, the Agenzia delle Entrate and Agenzia delle Entrate-Riscossione (the tax collection agency). The alert is written, reasoned and sets a deadline for the reply. Ignoring it exposes directors to liability; responding with a documented plan is the first defensive act.
Art. 25-octies del d.lgs. 14/2019 requires the supervisory body to notify the management body in writing of the existence of the conditions for the negotiated settlement, granting no more than thirty days for a reply. Art. 25-novies governs the alerts from qualified public creditors, anchored to thresholds of overdue exposure: the Istituto nazionale della previdenza sociale for delays exceeding ninety days in the payment of social security contributions; the Istituto nazionale per l’assicurazione contro gli infortuni sul lavoro for insurance premium debts overdue by more than ninety days; the Agenzia delle Entrate for VAT debts emerging from the periodic settlement returns; the Agenzia delle Entrate-Riscossione for debts entrusted to it for collection and overdue by more than ninety days.
Alongside the time requirement, each case carries an amount threshold, differentiated by creditor body and, for debts entrusted to the collection agent, by the debtor’s legal form: since art. 25-novies has been amended several times, the thresholds must be checked against the current wording before measuring the company’s position. Timely action also counts in the company’s favour: art. 25 of the Code grants incentive measures to those who act within the deadlines, and an alert received and filed away without a documented response is, from a liability perspective, the hardest thing to explain.
Legal references: artt. 25, 25-octies, 25-novies d.lgs. 14/2019; d.lgs. 136/2024
negotiated settlement and tax debts
The entrepreneur files an application on the national online platform; a committee appoints an independent expert who conducts negotiations with creditors under the composizione negoziata (negotiated crisis settlement procedure). The business stays under the entrepreneur’s management. On request, the court confirms protective measures that halt enforcement actions. The process is confidential and is not an insolvency procedure.
Artt. 12 e seguenti del d.lgs. 14/2019 govern access: the application is filed through the national online platform reachable from the institutional website of the chambers of commerce, accompanied by the documents listed in art. 17 — financial statements for the last three years, an up-to-date statement of assets and finances, the certificate of tax and contribution debts, the list of creditors, a six-month financial plan and a turnaround project. The expert is appointed by a committee and must be independent; the expert verifies whether the turnaround is realistically achievable and conducts the negotiations, without management powers: the business remains run by the entrepreneur who, however, where protective measures are in place, must manage it so as not to prejudice creditors.
Protective measures are requested with the application or later, are published in the Companies Register and are subject to confirmation by the court; their initial duration does not exceed four months and may be extended up to an overall maximum of twelve months. The outcome may be a contract with one or more creditors, a moratorium agreement, an accord also signed by the expert, or access to one of the crisis regulation instruments, including the simplified concordato of art. 25-sexies.
Legal references: artt. 12-25-quinquies, 17, 18, 19, 23, 25-sexies d.lgs. 14/2019
negotiated settlement: tax debts
They are not wiped out automatically. In the negotiated settlement they can be negotiated with the Agenzia delle Entrate, and incentive measures apply to interest, penalties and instalments. In the crisis regulation instruments, the transazione fiscale (tax settlement) operates, with the possibility of court approval even without the administration’s consent, on statutory conditions.
In the negotiated settlement, art. 23 del d.lgs. 14/2019, as supplemented by d.lgs. 13 settembre 2024, n. 136, allows a settlement agreement to be concluded on taxes administered by the Agenzia delle Entrate, with partial or deferred payment, on the basis of a report by an independent professional certifying that it is more advantageous than the liquidation alternative. Art. 25-bis provides tax incentive measures: reduction of interest accrued on tax debts during the negotiations, reduction of penalties for failure to pay and the possibility of paying by instalments tax debts not yet entered on the collection rolls. The size of the reductions and the maximum number of instalments are set by the provision and have been the subject of subsequent corrective interventions: they must be read in the wording in force at the date of the application, because they bear directly on the plan’s sustainability.
In the crisis regulation instruments the matter is governed by art. 63 for debt restructuring agreements and by art. 88 for the concordato preventivo (court-supervised arrangement with creditors): the proposal for the treatment of tax and contribution debts must be accompanied by a certification that it is more advantageous than judicial liquidation, and the court may approve even without the consent of the tax administration or the social security bodies where that consent is decisive. The conditions set for such approval — the minimum satisfaction of tax and contribution claims, limits on deferral, comparison with the treatment of other creditors — were redesigned by d.lgs. 136/2024 and must be checked against the current wording before framing the proposal.
Legal references: artt. 23, 25-bis, 63, 88 d.lgs. 14/2019; d.lgs. 136/2024
the treatment of tax debts · tax debts in judicial liquidation
They are liable to the company and to creditors for breaching their duties to preserve the company’s assets. If, after a cause of dissolution, management is not conservative, the damage is presumed equal to the difference between net equity at the two dates. Tax and criminal liabilities come on top.
Art. 2486 of the codice civile, as supplemented by art. 378 del d.lgs. 14/2019, provides that upon the occurrence of a cause of dissolution the directors retain the power to manage the company solely for the purpose of preserving the integrity and value of the corporate assets, and lays down the net-equity criterion for quantifying the damage: the difference between net equity at the date the procedure is opened and net equity at the date the cause of dissolution occurred, less costs incurred and to be incurred on a normality basis; in the absence of reliable accounting records, the difference between assets and liabilities as ascertained.
Art. 2476, commi 6 e 7, of the codice civile governs liability towards the creditors of an SRL and that of quotaholders who intentionally decided or authorised harmful acts. On the tax side, the liabilities of the transferee of a business under art. 14 del d.lgs. 18 dicembre 1997, n. 472 are relevant, as are the offences of d.lgs. 10 marzo 2000, n. 74, in particular failure to pay withholdings and VAT and the fraudulent evasion of tax payment. Reconstructing liability almost always turns on the documentation of the company’s arrangements: if there is no trace of them, the defence is harder.
Legal references: artt. 2476, 2486 c.c.; art. 378 d.lgs. 14/2019; art. 14 d.lgs. 472/1997; d.lgs. 74/2000
tax offences and 231 corporate liability · business transfers and tax fraud · fee calculation · request a quotation · negotiated settlement and tax debts · judicial liquidation and tax debts · OIC 5 and liquidation accounts · tax offences and the 231 model · shell companies
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