CONSULENZA ALLE IMPRESE – OLTRE LA VISIONE COMUNE

LIQUIDATION AND CANCELLATION OF THE COMPANY FROM THE REGISTER OF COMPANIES

Art. 28, co. 4 of d. Lgs. # 175/2014 ruled that – for the sole purpose of the validity and efficacy of liquidation proceedings, investigation, litigation and collection of taxes and fees, penalties and interest – to the extinction of the company in accordance with art. 2495 cc takes effect after 5 years from the request for removal from the register of companies. It was not, however, be governed the entry into force of the new legislation: according to the IRS, being procedural arrangement as to safeguard recovery actions of the revenue claim, the same also applies to tax control activities related to companies that have already prompted the cancellation from the commercial register, or have been cancelled, before December 13, 2014 (C.M. # 31/E/2014, par. 19.2), as well as for monitoring activities related to tax periods before that date, obviously respecting the time limits and limitation periods provided by law (C.M. # 6/E/2015, par. 13.1). The assessment notices are served on the company, according to the new rules, which apply also to acts of investigation, liquidation and collection – even if affected by litigation – before the notified December 13, 2014, company and cancelled before that date. In this regard, the IRS has clarified that the assessment notice containing the rectification of the Declaration of the company has been deleted from the commercial register will be issued against the company and notified to the same at the last tax domicile because, in this order, the effect of extinction will occur only after the expiration of 5 years from deletion (C.M. # 6/E/2015, par. 13.4). It being understood that the company, prior to the cancellation, can make use of the option to elect domicile at one person or Office in the municipality of their residence for tax purposes, for the service of documents or notices relating to him, pursuant to art. 60, co. 1, lett. d D.P.R). # 600/1973.

With regard to the retroactivity of the news in review, supported by financial administration, it should be noted, however, the opposite orientation of legitimacy, which does not consider procedural nature can be attributed to this rule (Cass. 6743/2015): it is, in fact, a material provision, because it affects the ability of the company has been deleted from the commercial register. In this regard, it should be noted that in favour of retroactivity argument lay both the general clause contained in art. 11 of the preliminary provisions. 3, co. 1, of law No. 212/2000 (s.c. Statute of taxpayer) that – save the authentic interpretation – tax laws are not retroactive: therefore, the predicted five-year deferral of the effects of the cancellation from the commercial register is applicable only to requests made on or after December 13, 2014, or from the date of entry into force of the Decree. # 175/2014.

In the case of receivables arising after the deletion of the company from the commercial register, in the presence of previously accrued the same assumptions, the ownership of the right to reimbursement is recognized, pro rata, directly to shareholders, who are entitled to apply for (C.M. # 6/E/2015, par. 13.7): for the purpose of simplification of the reimbursement provision, you can delegate to one of the partners or a third party, the liquidator, after informing the competent Office of the Inland Revenue (R.M. # 77/E/2011).

The tax authorities also stated that art. 28, co. 4 of d. Lgs. # 175/2014 is also applicable to partnerships, notwithstanding the different discipline of membership responsibilities connected to different corporate form (C.M. # 6/E/2015, par. 13.6): this approach is based on the consideration that the jurisprudence of legality has considered the principle of extinction of the corporations as a result of the cancellation also use with regard to partnership, albeit with the necessary distinctions in allanatura order, constitutive, rather than declarative of the cancellation and the varying degrees of membership responsibilities (Cass. NN. 6070, 6071, 6072 of March 12, 2013, and nn. 4060, 4061 and 4062 of February 22, 2010).

Art. 28, co. 5, d. Lgs. # 175/2014 has also reformulated the co. 1 art. 36 of D.P.R. # 602/1973, as a result of which the liquidators of Ires who do not fulfil the obligation to pay, with the activities of the liquidation, the taxes owed for the period of the liquidation and the front ones – including employee withholding taxes (C.M. # 31/E/2014, par. 19.2) – meet the payment of taxes, if not evidence, Alternatively, you have met the receivables prior to the assignment of goods to members or associates, or higher order credits in those tributaries.

The normally precise novellata also that "this responsibility is commensurate with the amount of tax credits that would find capacity when graduation credits". The wording of this provision seems, therefore, to align the orientation of a part of the substantive law in relation to the order of payment of creditors, according to which in the ordinary liquidation, not being laid down specific provisions on the matter, you should consider applicable – as supported by the prevailing law (Cass. # 3321/1996, Trib. Genoa n. 1125/2013 and Trib. Milan n. 14632/2010, contra Cass. # 792/1970 and 1273/1968, Trib. Udine February 26, 2010) – general principle of statutory "par condicio creditorum" (art. 2741 c.c.). Consequently, the liquidator, in case of insufficiency of assets relative to the amount of the debt, should respect the legitimate causes of pre-emption (mortgage, pledge or privilege) and, therefore, the provisions relating to civil, as art. 2777 c.c. (C.M. # 6/E/2015, par. 13.5).