Recent Incentive and Simplification Measures to Access Negotiated Crisis Settlements

Law Decree no. 13 of 24 February 2023 (the “NRRP Decree”), containing urgent provisions for the implementation of the National Recovery and Resilience Plan, published on the same date in the Official Gazette no. 47 and in force as of 25 February, introduced some relevant novelties regarding the Negotiated Crisis Resolution ( the “CNC”), a management tool for businesses in distress introduced by Legislative Decree no. 118 of 24 August 2021 and subsequently implemented in Articles 12 and following of Legislative Decree no. 14 of 12 January 2019, containing the Code of Business Crisis and Insolvency (the “CCII”).

More than a year after the introduction of the CNC, an early out-of-court corporate crisis management route, the NRRP Decree responds to the need felt in practice to simplify access to this route and to facilitate its use by companies.

To sum-up, the NRRP Decree now permits:

• access to an extraordinary tax debt instalment plan: Article 38, paragraph 1 of the Decree amends Article 25-bis, paragraph 4 of the CCII on the subject of “bonus measures” by extending the maximum legal term for the deferment of the debt to be collected by the Revenue Office up to 120 instalments (as opposed to the 72 previously provided for). The other conditions set forth in the aforementioned Article 25-bis, paragraph 4 remain unchanged, namely:
  • the requirement of the proven and serious situation of distress of the company stated in the special application submitted by the entrepreneur and signed by an expert;
  • the application of Article 23, paragraph 1, letters (a) and (c) of the CCII, i.e., the conclusion of a contract able ensure the business continuity of the company for a period of not less than two years or of an agreement allowing for the exemption from a claw-back action and bankruptcy offences;
• for creditors of the business in distress to access the procedure for the credit of VAT recovery: Article 38, paragraph 2 of the NRRP Decree provides that, in the event of a positive outcome of the CNC pursuant to Articles 23, paragraph 1, letters (a) and (c) of the CCII and from the date of their publication in the Trade Register, creditors may issue a variation note for VAT purposes pursuant to Article 26, paragraph 3-bis of Presidential Decree no. 633 of 26 October 1972 (the “VAT Law”) – to be registered pursuant to Article 25 of the same VAT Law – thus recovering the amount of VAT shown on the invoice, paid and not collected, through the tax deduction allowed under Article 19 of the same VAT Law. This is an innovation of considerable impact considering that up to now, by express provision of law, this provision was limited only to insolvency proceedings, as well as to restructuring agreements and certified reorganisation plans, provided that they were published in the Trade Register;
• access to the CNC with a declaration in lieu of tax and social security certification: Article 38, paragraph 3 of the NRRP Decree provides that the requirement to produce tax and social security certificates referred to in Article 17, paragraph 3, letters (e), (f) and (g) of the CCII – relating to the single certificate for tax and social security debts, and insurance premiums, in addition to the overall situation of indebtedness for the sums entered in the register can be fulfilled with a self-declaration pursuant to Presidential Decree no. 445 of 28 December 2000, stating that the request was made at least ten days before submitting the CNC application. This provision applies to CNC applications that have already been submitted and those that will be submitted on the dedicated platform until 31 December 2023.

Contrary to what emerged in the first drafts of the NRRP Decree that were circulated, the extension to the CNC of the institution of tax and social security settlements provided for in Article 63 CCII remains excluded.