Posted by on Apr 22, 2016

The rules in force concerning liability of the recipient companies of a split for tax liabilities relating to the company being divided appears very unclear and mainly presents the real risk of penalising unjustifiably the legitimate protection of the interests of the beneficiaries themselves.

In fact, article 173, paragraph 13, of the tax code, raises the offices of financial administration communication charges against the companies coobbligate, for documents issued at the expense of being divided; the coobbligate only have the right to participate in these proceedings, but they are not receiving any act to impose taxes of which can entirely ignore the existence until he had relied on joint and several liability.

On the other hand, article 14, paragraph 3, of legislative decree. 546/1992 stipulates that can act voluntarily in case of litigation the parties who are recipients of the contested measure or which are parts of the controversial tax ratio (joinder). But because the beneficiary is not, in strict, which is subject to any act of taxation – and this precisely because of what has the above paragraph 13 of article 173 of the tax code – you will exclude this company any chance to participate in the judgment whose outcome could affect the very relevant on its own capital, financial and economic dimension, without thereby that it is allowed to exercise an adequate defense.

An initial idea, then, would be to recognize the eligibility in case of litigation related to the assessment notices issued to the company being divided also benefiting companies, by accessing a wider interpretation of the concept of taxable recipient of the Act which come to include even those who, like the beneficiaries, from the Act itself can then be called to suffer more serious effects.

Raises substantial concerns still existed in a rule whereby the Income beneficiary, although called upon to act as a coobbligata, can not be subject of tax service of documents relating to the company being divided.

In principle, in the scheme of Executive assessment notice, the receiving company may become aware of the case that raised the tax debt only at the time of notification of the attachment order, for whose actionability should still be referring only to the closing standard referred to in article 19 of Decree. 546/1992.

There would be other than the way of invoking recipient’s coobbligata, opposition to executive act under civil procedures.

The whole point of this tangled affair clearly resides in a system which, by raising the Tax Administration from notification of acts also to beneficiaries of which you want to invoke the coobbligazione, creates a substantial concrete and little justified restriction of the exercise of the rights of defence and therefore the protection of the position of the recipient companies of a split for tax liabilities that may result from taxing acts having as main recipient the company being divided.

You share the opinion repeatedly expressed in the belief that it would be urgent action by the Legislator intended to revise, on the one hand, the current wording of the rules on the liability of tax debts in split, which go towards closer alignment to the analogous rules governing the sale and transfer of company, and that, on the other hand, put his hand to the regulation of the proceedings to ensure to everyone involved – first and foremost , the debtors – the right to have knowledge of all tax acts that they can relate to, so that they can effectively participate in the proceedings by exercising their legitimate right of defence.