Ricerc@Sapienza

1. The project encompasses the study and in-depth analysis of a plurality of institutions belonging to the "tax law of the enterprise crisis". It includes institutes of a general nature, issues of a procedural nature pertaining to the entire implementation phase of the tax and more typically procedural issues pertaining to the area of tax proceedings.

2. Restricting the description of the project to the broader themes of general theory, it is worth recalling:

a) The tax settlement ("treatment of tax and contribution claims") is one of the most suffered institutions of tax law.

This is an institution dating back to the amendments to the bankruptcy rule made by Legislative Decree No. 5 of 9 January 2006 (art. 146), which seemed to have acquired an arrangement not deserving of yet another restyling with the amendments brought about by art. 1, paragraph 81, of Law No. 232 of 11 December 2016. However, with the approval of the CCII, important changes were made that fostered new interpretative doubts especially for restructuring agreements.

In fact, they are not based on the simple splitting of the original discipline provided for by Article 182-ter of the Bankruptcy Law to reserve an autonomous regulation for restructuring agreements (Article 63) and composition with creditors (Article 88), because delicate coordination problems of non-negligible relevance have emerged.

With regard to Article 88, in fact, the provision was the full reproduction of Article 182-ter of the bankruptcy law, so that it was pointed out (only) that the doubts due to the continued reference to "taxes and related accessories administered by tax agencies" had not been resolved. In addition, the absence of references to the extraordinary administration of companies in crisis was criticised.

On the other hand, although in substance it reproduced paragraphs 5 and 6 of Article 182-ter of the Bankruptcy Law, the rules set forth in Article 63 for restructuring agreements were more problematic due primarily to the absence of any substantive rules because the legislation merely regulates procedural profiles.

An appreciable novelty that came with the Crisis Code was the provision in the last sentence of the second paragraph of Article 63 of the maximum term of sixty days from the filing of the proposal for the competent office to express its approval.

This is a rational solution due to the profound difference between the approval criteria for restructuring agreements and those for composition agreements and the different importance of the decisions of individual creditors.

However, the rule raised problems of coordination with respect to paragraph 5 of Article 48 (expressly referred to), for the purposes of the homologation judgement, since the rules that governed the homologation judgement originally provided, with a very innovative formula, that "the court shall homologate the restructuring agreements also in the absence of adhesion by the tax administration when the adhesion is decisive for the purposes of reaching the percentages referred to in Article 57, paragraph 1, and 60, paragraph 1, and when, also on the basis of the results of the independent professional" report, the

proposal for the satisfaction of the aforesaid administration is convenient compared to the liquidation alternative". 57, paragraph 1, and 60, paragraph 1, and when, also on the basis of the findings of the independent professional's report, the proposal to satisfy the aforesaid administration is convenient compared to the liquidation alternative".

In essence, the lack of adhesion of the Tax Administration did not preclude the Court's approval, albeit subject to certain conditions (but the same rule did not apply to social security institutions), and the doubts substantially concerned the effects of the approval with respect to the unfinished settlement proposal. There were radically different (if not opposing) doctrinal theses on the subject - especially with regard to the possibility of a substitutive assessment by the Court in the face of the inertia of the Tax Administration - and the jurisprudence, too, has taken an ambiguous orientation.

Therefore, even the innovations that came with the CCII not only did not prove decisive but also fostered numerous subsequent amendments in an attempt to give the tax transaction a rational set-up and to make the regulation compliant with the Insolvency Directive (i.e., Legislative Decree No. 14 of 12 January 2019, Legislative Decree No. 147 of 26 October 2020 and Legislative Decree No. 83 of 17 June 2022).

b) The regulation of the so-called "concordat bonuses or bonuses arising from restructuring agreements"; in the context of the rules on contingent assets for income tax purposes under Article 88 of the TUIR. This is an issue that has gained significant complexity over time following the 2016 regulatory changes that introduced the difference between continuation proceedings and liquidation proceedings. For this reason, there have been a number of responses to interpellation requests that deserve to be examined in full, organised according to a systematic criterion (e.g., no. 85 of 2018, no. 120 of 2018, no. 160 of 2019, no.

414 of 2019, no. 201 of 2022, no. 183 of 2023, no. 240 of 2023 as well as the very recent no. 49 of 2024).

c) The regulation of capital gains in Article 86(5) of the Consolidated Law on Income Tax (TUIR) is asymmetrical with respect to that reserved for contingent assets. In particular, the rule limits the irrelevance of capital gains and capital losses only to the "arrangement with creditors" while it has been broadened for realisation hypotheses other than those configuring a "cessio bonorum". Moreover, consistent with the approach of the draft, the answer to ruling No. 462 of 2019 is puzzling because it

moves from the difference between liquidating and continuing arrangements to apply the favourable regime only to liquidating arrangements. In fact, under current legislation, a difference within the same procedure is hardly justifiable, also because it is not supported by any regulatory reference.

d) The tax profiles of the Negotiated Crisis Resolution and Over- indebtedness. The former is the procedure introduced by Decree-Law No. 118 of 24 August 2021 (converted by Law No. 147 of 21 October 2021) to transpose EU Directive 2019/1023 (Insolvency) and avoid the European Commission's infringement proceedings. On the other hand, "Procedimenti di composizione della crisi da sovraindebitamento e di liquidazione del patrimonio" (Proceedings for the settlement of overindebtedness and the liquidation of assets) originate from Law No. 3 of 27 January 2012 and have been more organically regulated by the CCII.

e) The rules on variation notes for VAT purposes set forth in Article 26 of Presidential Decree No. 633 of 26 October 1972.

This is an issue that mainly concerns the taxation of creditors and that seems to have finally received a rational regulation after repeated regulatory amendments.

f) Other aspects related to the taxation of assets and the tax status of the company such as, for example, the regime of assets removed from the liquidation of the company.

3. The main objective of the project is to improve the current state of knowledge in view of the important evolutionary process underway, which it is hoped will lead to a definitive arrangement of the subject.

4. The project is based on a precise methodological framework to help fill the gaps in the state of the art: the comparison of interests deserving of protection, if not constitutionally protected, with reference to the weighing of values and the coordination of substantive and tax rules relating to companies in crisis.

This is a complex line of research because it requires the examination of a significant volume of legislation and case law, both constitutional and legitimacy, oscillating between the "favor" reserved for the continuation of the company's activity and the maintenance of employment levels, the strict (but not always justified) protection of the tax interest, the consideration in terms of "speciality" or promotional rules of individual provisions not always identified according to a clear and rational criterion.

In any case, since the selection and weighing of interests is the sole responsibility of the legislator, the research aims to identify a unified and rational criterion capable of assisting current reform drives and future decisions. In this context, given the most recent evolutionary thrusts and the indications deriving from European law, special consideration will be given to the difference between:

1) procedures that assume the continuity of the business, directly or indirectly,

2) and procedures of a strictly liquidation nature.

This is a rational partition from a systematic point of view because in liquidation operations, in principle, the taxation of assets is discontinued, there is a break in the tax period and the income is taxed according to the infamous wealth criterion.

In contrast, in proceedings based on the continuation of the activity there are no systematic reasons for a tax regime different from the ordinary regime of the company's tax status. The activity continues uninterruptedly, the assets remain subject to the tax regime of the enterprise and, therefore, there is no interruption of the tax period, the income is produced and taxed in the ordinary way and also the rules pertaining to the succession of tax periods (e.g. loss carry-forward) are the ordinary ones.

Nonetheless, although this difference has now become established in legal experience, there are still no unambiguous distinguishing criteria that can be applied in practice to the most complex cases. Moreover, the systematic framing and satisfaction of this requirement also requires in-depth knowledge of business economics, so that the project objectively presents marked traits of interdisciplinarity.