Recovering a debt from a company in liquidation can often be a problem in Italy. In fact, during such phase the company’s activities are gradually zeroed, and it is usually difficult to find company assets of significant economic value to attach.
However, before abandoning the idea of recovering a debt, one might try to attach possible amounts due to the debtor from the Italian Inland Revenue; in particular VAT credit that the company has to receive from the Italian Revenue Agency.
The Firm has recently advised and represented a company that had to recover a substantial amount from a company in liquidation. After having verified that the latter did not own either movables or immovables, the Firm decided to act vis-a-vis the Italian Inland Revenue, to verify if there were any receivable amounts. Such action allowed to ascertain that the debtor had accrued the right to a refund of a substantial VAT credit. The credit was attached and then assigned to the Firm’s client.
For the sake of completeness, a VAT credit may be attached (and then assigned by the judge) even if the debtor has not provided an adequate guarantee to obtain its immediate payment. Indeed, failure to provide such guarantee does not determine the tax payer’s loss of the right to obtain the payment of the excess amount of VAT paid, but only the temporary unpayability of the refund. Once the time limits for the assessment provided by the law (Article 57 of the decree of the President of the Italian Republic no. 633/1972) expire without any irregularity having been noted by the Revenue Agency, the amount the tax payer has to receive from the Inland Revenue becomes liquid, certain and immediately payable.
Therefore, based on the above a VAT credit can abstractly be attached and then assigned to the claimant both if the debtor has offered an adequate guarantee to the Italian Inland Revenue, and also if such guarantee has not been provided. In fact, should the latter be the case, even though the credit is momentarily illiquid, it is capable of “being paid in future, as can be concretely envisaged at the moment of the assignment”, with the consequence that it can be assigned.
(Bologna office, Massimo Campailla and Federico Tassinari, Tel: 0039 (0)51 2750020)
