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Healthcare professionals, by virtue of the recently arranged deferral, will be able to proceed with sending the data relating to healthcare expenses and reimbursements made during the 2020 tax period to the Health Card System by 03.08.2021 (instead of the deadline previously set at 01.31.2021). Consequently, the deadline within which taxpayers will be able to communicate their refusal to use the medical expenses incurred in 2020 for the processing of the pre-compiled 730 is also extended. Those who wish to exercise the right to object will therefore be able to send the form directly to the Revenue Agency until 8 February 2021 or access, from 16 February 2021 to 15 March 2021, directly to the authenticated area of ​​the Health Card System website!

These are just some of the results of the project Green Tech created by Politecnico di Milano, a path on the study of innovation successfully conducted by the Milanese university. What is certain, according to the data released, is that sustainability, and in particular Green Practice, is now perceived as directly linked to performance and medium-long term corporate success. But what is surprising is that the definition of sustainability and a sustainable company is still uncertain.

To clarify, sustainability indicates a general approach to production activities aimed at satisfying human and social needs without compromising the quality of life of future generations. The companies that have made this vision their own aim to conduct their business by investing in sustainable solutions for the future with particular attention to environmental sustainability - i.e. the protection of the environment and the reduction of environmental impact and consumption of resources - social sustainability - i.e. the protection of the principles of justice and equality in the treatment of employees, with related safety and health protections - and finally economic sustainability - i.e. the production of goods and services capable of improving people's lives without negatively impacting society and the environment.

In short, therefore, converting your business to a more sustainable perspective helps keep up with the times and also allows you to maintain a competitive standard appropriate to the needs of the modern market.

In general, in order to begin a process of reconverting corporate structures, the following activities can be identified, which are decisive for a sustainable corporate ecosystem:

1. Production and use of energy from alternative sources;
2. Organization of work that includes a specific function for the development of sustainability;
3. Optimization of logistics;
4. Innovation of the product;
5. Efficiency in production processes and related operational structures.

To give a significant example, 60% of the companies in the sample studied by Green Tech apply Green Practice to the Corporate area (e.g. through green missions, reporting systems, etc) and to the Operations area (e.g. through the recovery of energy management waste, etc).

In conclusion, what can be said is that being a sustainable and green company pays off and the data confirms the need for a so-called reconversion. green by companies. In particular, the urgency seems to be on small and medium-sized Italian companies where, as already observed, the increase in the commitment demonstrated by the entrepreneur towards sustainability issues corresponds to a sustainable - and therefore more competitive - evolution of the organizational structure.

In short, being a sustainable company is worth developing technical tools capable of developing and anticipating the future.

It is a situation, the one we analyze below, which presents the pressing need to rethink the entire tax system to avoid disaster through a possible tax amnesty (or amnesty tombstone). 

The stop to tax collections in our country, in fact, will last until1 September 2021, a date that many see as the prelude to anecessary tax reform which could also alter the collection system to dispose of the enormous number of credits still to be collected by the Tax Agency. Revenue and Collection (hereinafter, AdE).

At the moment, in fact, thecredit recovery costs by AdE appear to be extremely onerous and sometimes referable to irrecoverable debts and inconclusive actions.

It is this stalemate condition that has highlighted the need to review the tax-taxpayer relationship with clarity and simplicity.

It is not the first time that the public system has tried to rewrite and realign the State with the taxpayer, think of the so-called voluntary disclosure, a measure that came into force as an extraordinary measure and was then stabilized in full force. The fulcrum of voluntary, in fact, innovated the system in force at the time thanks to the use of a common European tax intelligence. The request addressed to EU citizens was to report any assets held outside the Union with the promise of the imposition of a lower administrative sanction.

This system of collaboration between tax authorities and taxpayers has proven effective in relation to the ability of states to quickly carry out verification and cross-check actions and bring to light previous positions previously impossible to discover, verify and sanction.

Following thevoluntary disclosure, the system has once again shown a strong need for innovation, bringing outnew prioritieswhich have pushed the legislator to pay particular attention tosimplificationin State-taxpayer relations, tocertaintyof the law, to the automation and effectivenessof controls by the tax authorities, toactive collaboration, to a rapid and effectiveassessment and collection system.

What we are requesting today as operators in the sector, as well as taxpayers, is a profound transformation of the taxpayer/treasury relationship which corresponds not only to a recovery of the previous amount but also and above all a facilitated collection.

The proposal is, that is, that of an extraordinary facilitative provision to be introduced starting from 2022 which allows:

• a "cleaning" of currently uncollectable positions (e.g. bills of up to 10,000 euros issued by 2015 and never hesitated);
• a facilitated definition of all other bills to be graduated in relation to the size of the taxpayer (also throughersed the reopening of scrapping by extending the time frame to all notifications until 31/12/2019);
• a total amnesty for the pre-pandemic years (2016-2019) of the positions of small taxpayers (business volume up to 10 million), similar to what has already been implemented with the 2003 financial law, with flat rates reduced;
• an extension of the voluntary repentance with bonus rates (minimum nominal single penalty after the 90th day plus interest).

The above proposal is only a first step towards a reform that allows the AdE to establish a relationship of collaboration with the taxpayer within which the latter, once the past has been remedied, would have every interest in maintaining ethical tax behaviour. This would allow for a transparent relationship with the State and a productive attitude towards tax compliance on the part of the taxpayer, intimidated by the quicker and more effective assessment and sanction capacity demonstrated by the public apparatus.

In the case of E-sports the players are organized into ad hoc teams, but unlike challenges and games based on fantasy narrative, the values and dynamics of competitive gaming are strongly close to the real competitions of the single discipline.

Malerba&Partners has therefore chosen to become a protagonist in a rapidly growing market based on team competitions in which gamers can learn, while having fun, team building as well as the values of ambition and healthy competition. In fact, together with the company Partners 4 Innovation, Malerba assisted the former Argentine footballer and champion Hernan Jorge Crespo in the creation of his own E-sports team "HC9" and in the management of his investment in the competitive gaming market (see the article here).

Thanks to its network of professionals and collaborators, the firm assists and accompanies companies in their investment both in the team creation phase (choice of the corporate form and corporate structure, search for pro players etc.) and in the  practical management of the E-sports structure and their components (organisation of the season's tournament schedule, intermediation for contract management of players, coordination for management of content on digital channels, planning of the event schedule throughout the season, etc.).

All this is the result of years of experience in the legal, tax and corporate fields which make Malerba's offer strong and competitive, from traditionally strategic sectors to those with rapid growth and great potential, such as E-sports.

The recently approved National Recovery and Resilience Plan (PNRR) provides for investments of over 40 million euros in programs related to corporate digitalisation, now seen as key to the development of businesses. The need to start or complete the company digitalisation journey is therefore undeniable. In the next lines we will answer the question of how to do this.

First of all it is good to remember what digitization entails; in short, it can be said that the transition to digital allows you to simplify and save money by exploiting the state of technological advancement and therefore abandoning traditional (so-called analog) tools, making the entire workflow more streamlined and fluid.

Choosing to digitalize your business helps to dematerialize physical places making communication and sales constant: in short, you can always be anywhere without limiting your potential. To give a quick example, the use of social networks with company accounts that represent the brand allows you to monitor customer sentiment and intercept their opinions and trends, helping to improve products and services or create new ones. Upon closer inspection, an analogue tool does not allow these results to be obtained quickly and with low costs, but digitalisation does, in particular through technologies such as Machine Learning and Artificial Intelligence (AI).

At this moment, in particular, there are many sectors - specifically SMEs - that are poorly digitalised and require realignment with corporate innovation, i.e. Logistics, Production, Human Resources, End customers.

However, before proceeding with the digitization process, some preliminary phases are necessary to prepare for the transition from analogue to digital. It is in fact essential to clarify priorities and objectives on the basis of the problems encountered and the sustainable goals of the company; by way of example, it is possible to find in some companies the presence of old, isolated IT structures: in these cases it is convenient to migrate these structures to new systems rather than establishing new ones. Only subsequently is it possible to proceed by planning the new renewed business model together with professionals and on the basis of well-measurable KPIs.

The support of specialized professional figures and the choice of measurable KPIs (and therefore evaluable in performance) is essential to create an innovation process designed on the specificity of the company. In fact, it will be possible, in this case, to choose solutions suitable for specific and accessible needs on company devices but above all scalable solutions, i.e. flexible enough to be valid and functional in the evolution of the company, capable of adapting to growth in a simple, fast and economical way.

What has been stated would allow, in particular in those sectors that are still poorly digitalised such as Logistics, Human Resources, Production, end customers, to fluidly manage all processes but above all to automate part of the activities while also being able to control them via a centralized archive that is always available. It is also essential to remember how the progressive digiThe implementation of these sectors has positive impacts on compliance with security protocols and data protection, making the company compliant with the legislation (see GDPR).

In conclusion, it is possible to state that the process of digitalisation and corporate innovation certainly entails a number of advantages far greater than the costs to be faced: in fact, given an expense in terms of customization and implementation of the digital solution as well as in terms of security and compliance, the advantages for companies in terms of automation of activities, dematerialisation, immediate communication, commercial visibility would be undeniable.

To do this, however, and not miss the opportunity to participate in the investments also foreseen by the PNRR, a commitment on the part of the entrepreneur and the choice of professionals capable of accompanying the company in this process is necessary.

Despite what is normally stated in common opinion, Italy is considered a tax haven, at least in matters of inheritance and donation taxes linked to the generational transition (as an example, note the rates for the exemption applied in relation to the degree of kinship in the following table):

However, even before explaining the reasons and the additional benefits currently in force in our system, it is useful to take a step back.

In our system the term generational transition (i.e. business succession) is defined as the passage of entrepreneurial management from one generation to the next. This is not a mere transfer of shares or positions but the much more complex and precious transfer of company know-how, the true value of the company acquired over the years.

The succession implemented in this step contributes to business continuity through adequate tax planning which presupposes the involvement of multiple factors and professionals capable of accompanying this transition and exploiting the tools and institutions provided by our legislation to protect the historical legacy of family-run businesses in our country

The first of these instruments on the subject is undoubtedly art. 3, c. IV-ter of Consolidated Law on Inheritance and Donations which exempts transfers in favor of descendants and spouses of companies or branches thereof, as well as company shares and shares, from indirect taxation.

• In the case of the transfer of shares or shares in a joint-stock company it is necessary that as a result of the transfer the buyer acquires or integrates control of the company and that he retains it for at least 5 years;
• In the case of the transfer of shares in a partnership it is necessary for the buyer to continue the business for at least 5 years. In this case, the control requirement is not necessary;
• Finally, in the event of the sale of the entire company or a business branch it is necessary for the buyer to continue operating the business for at least 5 years.

It is worth remembering here that, if you benefit from the free purchase of thecompany, it is mandatory to submit not only the succession declaration or the deed of donation but also (depending on the case) the declaration of continuation of the business for at least 5 years.

In particular, however, the additional institutions and tools functional to the facilitation or fiscal optimization of the generational transition provided for by our legal system are of interest, namely:

1. THE CREATION OF A HOLDING COMPANY

If the shareholding in the share capital meets the PEX requirements, it is convenient to transfer the shares to another Holding company as the capital gain realized is 95% exempt and therefore subject to taxation. to the extent of 1.2% - given a taxable amount of 5% for IRES at 24%.

• THE DONATION OF BARE OWNERSHIP

This institution, expressly provided for by the legislator, gives the founder the possibility of donating ownership of the company to his successor, while reserving the usufruct of the company.

With this institution, the heir is given initial access to the business activity, reserving ownership of the shareholdings to him. However, the original founder remains present as manager of the same. In this way it favors a smooth transition, allowing both the other members and external parties to gradually approach the new management.

From a tax point of view, this solution also brings advantages, first of all the possibility of obtaining a reduction of the taxable base equal to the value of the usufruct that would remain with the entrepreneur.

Furthermore, the proportionality between the value of the usufruct and the age of the entrepreneur is worthy of consideration: the younger the donating entrepreneur, the higher the value of the usufruct will be.

Finally, upon the death of the usufructuary, the consolidation of bare ownership and usufruct on the heirs will take place free of charge.

• THE TRUST

Finally, a useful tool for  generational transition of the company, is certainly constituted by the Trust.

This is an instrument with which it is possible to provide that the beneficiaries are the legitimate heirs: the Trust, in fact, provides that the Trustee cannot sell controlling interests and must manage them for a period of no less than five years following the contribution to the Trust by the settlor (entrepreneur).

Of course, the Trust is a complex tool, which does not fit all solutions. The implementation of a Trust requires a suitable period of analysis and planning of the costs linked to the management entrusted to third parties of the assets conferred therein and from which the heirs will benefit.

More in detail, for tax purposes it is noted that the dispositive deed, with which the settlor binds the assets in Trust, is a free transaction without translation effects, and therefore discounts the registration taxes (and, if there are real estate assets, the mortgage and cadastral tax) in a fixed and non-proportional amount.

Therefore, with reference to inheritance and gift tax, as reported above,  it should be noted that it is due not at the moment of the establishment of the trust deed or capital endowment, but rather following the eventual final transfer of the asset to the beneficiary.

On 21 October of the current year, decree law no. was converted into law. 118/2021, already in force since August 25th. Starting from next November 15th, the conversion law 147/2021 will introduce the new institution of the negotiated settlement of the crisis: the institution will be activated on a voluntary basis at the request of the entrepreneur who presents a situation of reversible patrimonial or economic-financial imbalance.

If, in fact, the recovery of the company is possible, the interested party will be able to request the competent Chamber of Commerce to appoint an independent expert who will facilitate the negotiations between the entrepreneur, creditors and any other interested parties. The appointment will take place among the subjects registered on the specific list and will have the aim of identifying a solution to overcome the imbalance conditions identified. The solutions could also be the transfer of the company or branches of the same.

On the other hand, in the presence of situations of patrimonial or economic-financial imbalance that generate a crisis or insolvency, the control bodies (where existing) must report in writing to the entrepreneur or administrator the existence of the conditions for the negotiated settlement.

ASPECTS AND CHARACTERISTICS OF THE NEGOTIABLE SETTLEMENT

During the negotiation of the negotiated settlement, the entrepreneur retains the ordinary and extraordinary management of the company and, where there is a probability of insolvency, he has the duty to manage the company in such a way as to avoid prejudice to the economic-financial sustainability of the business.

The negotiations take place between the entrepreneur and the interested parties individually and in complete autonomy from each other. The expert appointed by the competent Chamber of Commerce will be present on this occasion with the function of facilitating mediation and guaranteeing the absence of prejudice for creditors.

It is important to underline that the law does not provide for the obligation to appeal to the Court.  The intervention of the Court may be requested by the entrepreneur for authorization to contract new financing or in the case of extraordinary operations.

REWARD MEASURES AND BENEFITS

The new institute of negotiated settlement appears to be a faculty to the advantage of the entrepreneur who will no longer be obliged to appeal to the competent Court. In addition to this undeniable relief, the law. 147/2021 provides for a series of reward measures and additional advantages relating to:

• the reduction to the legal amount of the interest that accrues on tax debts;
• the exemption of the entrepreneur from crimes pursuant to articles. 216, paragraph 3, and 217 of the bankruptcy law for payments and operations carried out during negotiations;
• suspension from recapitalization obligations and causes of dissolution in the event of reduction or loss of share capital;
• exemption from clawback for actions carried out in accordance with the negotiations and according to the recovery objectives;
• reduced tax penalties and the possibility of paying in installments the taxes due but not paid in 72 installments;
• the definition of an agreement that generates the same effects as a recovery plan, without the need for certification;
• the possibility of stipulating debt restructuring agreements pursuant to articles. 182 - bisseptiesnovies, 
• alternatively propose a request for a simplified composition with creditors for the liquidation of assets or to access other insolvency or alternative bankruptcy procedures;
• authorization by the Court and renegotiation of contracts worthy of preserving business continuity, pursuant to art. 10 of the Decree and preservation of the effects pursuant to art. 12 of the Decree.

Furthermore, if it deems it necessary to protect the assets from initiatives that "could disturb the regular course of the negotiations and put the recovery of the company at risk

CONCLUSION OF THE NEGOTIATED SETTLEMENT

Following the negotiations, the entrepreneur and the parties involved with the facilitation of the appointed expert will arrive at identifying a solution suitable for overcoming the situation of patrimonial or economic-financial imbalance which makes the crisis or insolvency of the company probable.

In this phase, at the conclusion of the negotiated settlement, the parties will be able to:

• sign an agreement, with one or more creditors, suitable to ensure business continuity for a period of no less than two years according to the expert's final report;
• conclude an agreement signed by all the parties involved in the negotiation, including the expert, who produces the effects of the certified plan pursuant to art. 67, paragraph 3, letter d), Bankruptcy Law, without the need for certification;
• propose to access the new institution of the simplified liquidation agreement, provided for by art. 18, Legislative Decree no. to inform neither the Court nor the Public Prosecutor, except in the case of requesting protective or precautionary measures.

A possible turning point by the Court of Cassation on the nullity of omnibus guarantees (sureties) due to limits on competition.

On 30 April 2021, the First Section of the Supreme Court with interlocutory order no. 11486, referred to the First President the assessment regarding the need to transmit to the United Sections the question relating to the legal consequences of a bank guarantee for which the nullity is contested due to violation of the Antitrust Law.

The omnibus suretyship is a personal guarantee which requires the guarantor to pay all debts, present and future, that the principal debtor has assumed or will assume towards a bank or other creditor. Through the omnibus clause, the creditor is not required to renew and/or integrate the guarantees already provided by the same guarantor every time a new credit/debt relationship is established with the debtor. The practice of using this instrument within the credit market is legitimized in particular by the following rules: art. 1938 of the Civil Code pursuant to which "the guarantee can also be given for a conditional or future obligation with the provision, in this last case, of the maximum guaranteed amount" and art. 1956 c.c. according to which "the guarantor for a future obligation is released if the creditor, without special authorization from the guarantor, has given credit to the third party, despite knowing that the latter's financial conditions had become such as to make the satisfaction of the credit significantly more difficult. The prior waiver of the guarantor to avail himself of the release is not valid".

The hazard that characterizes the "omnibus" guarantee has raised several doubts due to the breadth of its scope (also extending to future obligations), giving rise to a jurisprudential/doctrinal debate regarding the possible illegitimacy of the same. The issue relating to the potential illegitimacy of omnibus sureties has been addressed several times by the Supreme Court. If initially the orientation of the Court of Cassation considered said guarantees partially null, now the constant jurisprudential orientation is aimed at considering that said guarantees are affected by total nullity. For this reason, these guarantees - drawn up on the contractual scheme prepared by the ABI in October 2003 and judged by the Competition Authority to be the result of a horizontal agreement restrictive of competition as per the Bank of Italy's assessment, no. 55 of 2 May 2005 - are currently subjected to evaluation by the Supreme Court due to the evident presence of clauses restricting competition which render the guarantee irremediably void. We therefore await the decision of the United Sections which will put an end to the age-old issue.

******

The guarantors who have signed aso-called guarantee omnibus drawn up on the form prepared by the ABI, can now challenge them in order to obtain a declaration of total nullity from the competent courts and consequently be exonerated from payment.

In this context, particular attention deserves the extension of the recognition of "other" deductions with the provision of some changes, and in particular:

• the so-called "facade bonus", provides for the reduction of the deduction from 90% to 60%;
• the so-called "furniture bonus", in 2022 reduces the maximum eligible expenditure to €10,000;
• in terms of so-called "green bonus", the deduction is also recognized for 2022, 2023 and 2024;
• for the so-called "superbonus", the deduction is recognized with different terms and conditions based on the person incurring the expense and the building involved in the interventions.

Let's see in detail how the current situation looks in light of the tax advantages provided by the new Budget.

110% DEDUCTION

With regards to the 110% deduction referred to in art. 119, DL n. 34/2020 is a general confirmation of the subsidized interventions as well as the possibility of opting for the discount on the invoice/transfer of credit instead of using the due deduction in the tax return.

EXTENSION OF THE TERMS FOR SUPPORT OF subsidized expenses

The extension relating to the date of payment of expenses is not unique but differentiated based on the intervention, the subject and the property.

In particular, from thenew wording of paragraph 8-bisof the art. 119, it now appears that:

• for the "driving" interventions carried out by condominium owners and natural persons, outside of the exercise of business activities / self-employment on buildings composed of 2 to 4 distinctly registered real estate units, even if owned by a single owner or co-owned by several natural persons, the deduction is due with the following terms and in the following measures:
  • 110% for expenses incurred until 31.12.2023;
  • 70% for expenses incurredin 2024;

• the deduction is due in the amount of110% for expenses incurred up to 31.12.2022 for interventions "driving" carried out on the single real estate unit (so-called "villas")by natural persons, outside of the exercise of business activities / self-employment,provided that as of 30.6.2022the works have been carried out for at least 30%of the overall intervention;

RECOVERY OF "ORDINARY" BUILDING ASSETS

With the modification of the art. 16, paragraphs 1, 1-bis and 1-ter, DL n. 63/2013is extended from 31.12.2021 to 31.12.2024 the deadline within which the expenses relating to:

• recovery interventions on the building heritage to benefit from the deduction referred to in the art. 16-bis, TUIR in the amount of 50%, on the maximum amount of €96,000;
• interventions to adopt anti-seismic measures as per letter. i) of paragraph 1 of the aforementioned art. 16-bis on buildings in seismic risk zones 1, 2 and 3 used as homes or production activities.

This extension entails theextension to the same date(31.12.2024) also of:

• deductions referred to inparagraphs 1-quater and 1-quinquies of the aforementioned art. 16, due in the amount:
  • of 70% - 80% in the presence of a transition to 1 / 2 lower seismic risk classes;
  • of 75% - 85% when the aforementioned transition concerns interventions on the common parts of the condominium;

• deduction due for the so-called "purchase of earthquake-proof houses" referred to in paragraph 1-septies, i.e. in the presence of demolition and reconstruction of entire buildings with reduction of seismic risk carried out by the construction/renovation company that sells them within 30 months of the end of the works, for which the buyer is recognized the deduction of 75% - 85% of the purchase price, within the maximum spending limit of €96,000 per real estate unit.

"BONUS FACADES"

With the modification of the art. 1, paragraph 219, Law no. 160/2019, Financial Law 2020, the so-called "facade bonus", relating to the expenses for construction interventions on the opaque structures of the facade, on balconies / friezes / ornaments, including those of external cleaning or painting only, aimed at the recovery / restoration of the external facade of the buildings located in zone A (historic centres) or B (totally or partially built) referred to in Ministerial Decree no. 1444/68,is recognized at the rate of 60%(instead of 90%)for expenses incurred in 2022.

"FURNITURE BONUSES"

With the modification of the art. 16, paragraph 2, DL n. 63/2013, the so-called "furniture bonus"is extended to expenses incurred until 2024 with the following changes:

• the 50% deduction, in 10 annual installments (as in the past), applies to a maximum expenditure of:
  • €10,000 for 2022 (until 2020 it was €10,000 and in 2021 it was raised to €16,000);
  • €5,000 for 2023 and 2024;

regardless of the amount of "renovation" expenses preparatory to the bonus.

"GREEN BONUS"

With the modification of the art. 1, paragraph 12, Law no. 205/2017, Financial Law 2018, the c.d. "green bonus", i.e. the 36% deduction, on a maximum expenditure of €5,000 per real estate unit for residential use, relating to the interventions of:

• "green arrangement" of private uncovered areas of existing buildings, real estate units, appurtenances or fences, irrigation systems and construction of wells;
• creation of green roofs and hanging gardens;

it is also recognizedfor 2022,2023 and 2024.

The allowance is recognized for each dependent minor child and, for new borns, it starts from the seventh month of pregnancy.

It is also recognized foreach dependent adult child, up to the age of 21, in the presence of certain conditions, and is recognized without age limits for each child with a disability.

The amount paid to each family takes into account the ISEE indicator presented and will be quantified in a variable quota modulated progressively (ranging from a maximum of 175eurosfor each minor child with ISEE up to 15 thousand euro, at a minimum of 50 euros for each minor child in the absence of ISEE or with ISEE equal to or greater than 40 thousand euros).

The amounts due for each child may be increased in the case of large families (for children after the second), mothers under the age of 21, families with four or more children, parents who both earn income from work, children with disabilities.

Being universal, the check will also go to families who do not declare ISEE or have ISEE greater than €40,000. In this case, however, you will receive the minimum amount equal to 50 euros per month for each dependent child.

The amount paid replaces previous deductions for dependent children and household allowances.  From March 2022, in fact, allowances for the family unit and family allowances will no longer be paid in the pay slip and deductions for dependent children under 21 will no longer be recognized, as they will be replaced by the single universal allowance.

For this reason it is necessary for all taxpayers with dependent children to submit the request so as not to lose the benefits in terms of deductions and family allowances, now replaced by the single and universal allowance.

HOW TO APPLY

It is sufficient to equip yourself with a SPID, CIE (electronic identity card) or CNS (national services card) and connect to the INPS portal where, in the "Single and universal allowance for dependent children" section you can, with a few simple steps, submit the request.

The payment of the universal single allowance will startfrom 01 March 2022, with credit to the reported current account, and the application must be submitted by 30 June 2022 in order not to lose the arrears starting from 01 March 2022.

For those who submit the application from 1 July 2022 the benefit will start from the month following the month of submission, without recognition of arrears.

It is important to remember that the request for the single universal allowance must be renewed every year via the INPS website.

Among these, one of the main ones concerns the intervention on the Personal Income Tax IRPEF

1. the decrease from five to four of the branches
2. the lowering of the rates

   In reference to the structure of tax2021

   From now on the brackets and rates will apply instead following:

   STANDINGS	RATE	TAX DUE
   Up to €15,000	23%	23% of income
   € 15,001 – €28,000	27% (2	€3450 (23% * 15,000)  + 27% on income exceeding €15,000
   €28,001 - €55,000 (1	38% (2	€6960 (3450 + 27% * 28,000 -15,001)  + 38% on income exceeding €28,000
   €55,001 - € 75,000	41%	€17,220 (6960 + 38% * 55,000 – 28,000)  +41% on income exceeding €55,000
   Over € 75,000	43%	€25,420 (17,220 + 41% * 75,000 – 55,001) + 43% on income exceeding €75,000

   Part of the IRPEF changes also concerns the amount of deductions and their field of operation: in in particular, today there has been an increase in deductions on income from self-employed pensionemployeesadditional deductions

   The following is the provisions for each income category:

   STAGES	RATE
   Up to €15,000	23%
   €15,001 – €28,000	25% (2
   €28,001 - €50,000 (1	35% (2
   Over €50,000	43%

   INCOME FROM EMPLOYEE
   Income	Amount deduction
   Up to €15,000	1,880 (not less than 690, 1,380 if for a fixed term)
   €15,001 - €28,000	1,910 + 1,190 * [(28,000 – income) /13,000]
   €28,001 - €50,000	1,910 * (50,000 – income) / (50,000 - 28,000)
   Over €50,000	Not expected

   PENSION INCOME
   Income	Deduction amount
   Up to €8,500	1,955 not less than €713)
   € 8,501 - €28,000	700 + (1,955 – 700) * [(28,000 – income) / (28,000- 8,500)]
   €28,001 - €50,000	700 * [(50,000 – income) / (50,000 – 28,000)]
   Over €50,000	Not foreseen

   Due to the change in the structure of the brackets, starting from 1 January 2022, the deductions will be applicable to incomes up to €50,000

   In addition, further deductions are expected to avoid losses in the change of the rules regarding IRPEF:

   • income from employment
   • income from pension
   • income from self-employment

     Furthermore, natural persons with an income below the threshold of €15,000 will still be granted the supplementary treatment of €1,200. For those who exceed the threshold of €15,000, but not that of €28,000, a supplementary treatment of a maximum of €1,200 will be recognized provided that the sum of the other envisaged deductions (family expenses, income from work, interest expense on mortgages, renovation and energy requalification expenses).

     The taxpayers who will benefit most following the entry into force of the Reform will be employees with incomes of €40,000self-employedpensioners with incomes of €50,000

     In conclusion, it can be stated that the aim of the new structure and the entire IRPEF reform was, in the intentions of the Legislator, to make the growth of the progressivity curve more harmonious

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     Terzo Settore

     The new rules on business crises: the negotiated settlement of the crisis

     The new rules on business crises: the negotiated settlement of the crisis

     The negotiated settlement of the crisis (CNC) is a new procedure that can be used from 11/15/2021 to allow companies in difficulty to find balance, through negotiation with creditors and…

     It is worth emphasizing this procedure in consideration of the growing number of companies in difficulty, in particular due to the economic crisis suffered by the entire country system in recent years.

     The situation to date, in fact, still sees a very limited number of experts, registered at a national level, compared to the expected needs and uses that the tool could have. But despite this, it is important to summarize in extreme detail the salient aspects of this procedure which is activated on the initiative of the entrepreneur and coordinated by the chamber of commerce via a national telematic platform.

     Let's see them below.

     The CNC starts with the appointment of an independent expert chosen from among the subjects registered in a special list, kept at the Chamber of Commerce, which can be accessed by professionals in possession of certain experience, training and competence requirements. The expert facilitates negotiations between the entrepreneur, the creditors and any other interested parties, in order to identify a solution for overcoming the conditions of equity or economic-financial imbalance which make the crisis or temporary insolvency of the company probable, also through the transfer of the company or branches of it.

     Article 1 of the Legislative Decree provides that the commercial and agricultural entrepreneur who finds himself in conditions of patrimonial or economic-financial imbalance which make a crisis or temporary insolvency probable, can ask the general secretary of the chamber of commerce, industry, crafts and agriculture in whose territorial area the company's registered office is located to appoint an independent expert, when it is reasonably achievable to recover the company through the start and completion of negotiations with their creditors. The appointment takes place according to the methods specified in the decree through the direct use of the platform (art. 3) to present the application according to the specifications indicated below in the rule (in art. 5).

     Concurrently with the submission of the application, the entrepreneur may request, with an appeal to be presented also to the Court, the confirmation or modification of the protective measures of the company assets or the adoption of the precautionary measures necessary to have time to complete the negotiations with the creditors (articles 6 and 7). The Court issues an order which establishes the duration, not less than thirty and not more than one hundred and twenty days, of the protective measures and, if necessary, of the precautionary measures ordered at the request of the entrepreneur, after consulting the expert. The judge may extend the duration of the measures ordered for the time necessary to ensure the successful outcome of the negotiations.

     The entrepreneur can declare that, until the conclusion of the negotiations or the filing of the request for negotiated settlement, articles 2446, second and third paragraphs, 2447, 2482-bis, fourth, fifth and sixth paragraphs, and 2482-ter of the civil code do not apply to him and the cause for dissolution of the company due to reduction or loss of the share capital (art.8) does not arise.

     During the negotiations the entrepreneur retains the ordinary and extraordinary management of the company (art.9). The entrepreneur in a state of crisis manages the business in such a way as to avoid prejudice to the economic-financial sustainability of the business. When, during the negotiated settlement, the entrepreneur is insolvent but there are concrete prospects for recovery, he manages the company in the prevailing interest of the creditors. The responsibilities of the entrepreneur remain unchanged, who will have to operate in compliance with the guidelines of the recovery plan that he, assisted by his consultants, has drawn up in support of the CCN application.

     At the conclusion of the negotiations (art.11) when a suitable solution for overcoming the crisis situation is identified, the parties may alternatively:

     a) conclude a contract, with one or more creditors, which according to the expert's report is suitable to ensure business continuity for a period of not less than two years;

     b) conclude a moratorium agreement pursuant to article 182-octies of the Bankruptcy Law (hereinafter, LF);

     c) conclude an agreement signed by the entrepreneur, the creditors and the expert which produces the effects referred to in article 67, third paragraph, letter d), of the LF (the so-called certified plan); in this case the certification is not necessary.

     d) request the approval of a debt restructuring agreement pursuant to articles 182-bis, 182-septies and 182-novies of the LF;

     e) prepare the certified recovery plan referred to in article 67, third paragraph, letter d), LF; 

     f) propose the application for a simplified composition with creditors for the liquidation of the assets referred to in article 18 of the same decree;

     g) access one of the procedures governed by the LF and the corporate crisis code (CCR).

     In the adoption of the CNC procedure, some reward measures are envisaged, (art.14) such as:

     • calculation of interest on tax debts at the legal rate;
     • minimization of tax penalties in the event of non-payment;
     • possibility of obtaining payment of tax debts with an installment plan of up to 72 monthly instalments. In this case, however, it is not possible to experience the so-called "tax transaction" referred to in art. 182 ter LF.

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     Legale

     The Crypto world: opportunity or risk

     The Crypto world: opportunity or risk

     The world of cryptocurrencies (or cryptocurrency) is becoming increasingly impressive today. Although it is not seen with general favor by governments and world economies, they are increasingly numerous…

     In the absence of legislation that is in step with the times and with economic and market needs, let's try to briefly summarize what is necessary to know before approaching what the future trading system will be.

     The progenitor of all cryptocurrencies is the well-known Bitcoin which pioneered the virtual world of electronic currencies. All governments in the world are studying legislative solutions to regulate the phenomenon of growth in the financial use of cryptocurrencies. The generation of surplus value linked to sales activity is under the scrutiny of the tax authorities.

     Italy does not yet have ad hoc legislation that regulates this aspect from a financial and fiscal point of view but this does not mean that there are no rules. Following many requests, the Revenue Agency and some rulings (which, please note, are not binding but provide an idea of the thinking of the Italian tax authorities) have established that the capital gains realized must be indicated in the tax return.

     Cryptocurrencies are not legal tender andwallets(virtual payment instruments) are not current accounts. However, it is necessary to clarify the nature of electronic currencies which are different in nature, such as non-fungible ones (so-called NFTs which only give rights to use services) and fungible ones (for example Bitcoins, considered real currencies for the purchase of goods and services). Others, however, can be compared to real financial instruments, such as shares or bonds.

     As stated above, according to the current orientation on fungible cryptocurrencies (with the exception, therefore, of NFTs on the taxation of which the Revenue Agency has not yet expressed its opinion), the Italian taxpayer will be required to include them in his tax return and, in some cases, to pay the related taxes.

     The taxpayer natural person resident in Italy, every year, must:

     1) Insert in the tax return, in the RW section (Foreign investments and/or foreign financial activities), the value of all cryptocurrencies held during the year. Failure to declare leads to the application of sanctions;

     2) Check whether the total of sums held, on all cryptocurrency wallets and all current accounts in fiat currency (dollars, yen, etc.) exceeds, in euros, the limit of 51,645.69 for at least seven consecutive working days in the calendar year, according to the exchange rates of January 1st. It is advisable to also consider public holidays when calculating the limit as the cryptocurrency market is always open;

     3)  in the event that the threshold referred to in point 2) has been exceeded even just once during the year any capital gain generated by the transfer of digital currency will generate a tax rate of 26%. By transfer we mean both the sale and use of the cryptocurrency for the purchase of goods and services or the exchange of cryptocurrency with another cryptocurrency.

     Ultimately, it can be said that matter is complex. It is therefore appropriate and desirable to have a regulatory intervention that clarifies many obscure sides of the process which make compliance difficult with difficulty in findingire exchange rates or transactions that are difficult to recover, with complex calculations to consider. In the event of a possible assessment by the Revenue Agency, the burden of proof of having correctly declared and paid taxes on cryptocurrencies is borne by the taxpayer.

     The risk is of incurring administrative sanctions (which can reach 240% of the tax that would have been due, in addition to the payment of the capital gain realized) and penalties (for example, in the case of failure to declare, you risk up to 5 years of imprisonment in the case of evaded tax exceeding 50,000.00 euros).

     In conclusion, anyone who wants to approach this world, which will also be the not too distant future, will have to deal with legislation that is not in step with the times and which risks hindering a path that has now started and continues its unstoppable journey.

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     Corporate

     La composizione negoziata della crisi CNC: la domanda

     La composizione negoziata della crisi CNC: la domanda

     In the article "The new rules on business crises: the negotiated composition of the crisis" we talked about the innovations regarding business crises approved by Legislative Decree 118/2021 (converted into Law 147 of…

     In this article we will focus in particular on the procedure for submitting the application for access to the procedure.

     The start of the procedure and the consequent appointment of the expert take place, as anticipated, through the chamber of commerce portal through the direct use of the platform (art.3) to present the application according to the specifications indicated below (in art. 5).

     Once logged in, the platform provides:

     • a detailed checklist, also adapted to the needs of micro, small and medium-sized enterprises, which contains operational indications for the drafting of the recovery plan;
     • a practical test to verify the reasonable feasibility of the recovery, accessible by the entrepreneur and the professionals appointed by him;
     • a management protocol of the composition negotiated. 

     Specifically, the question must contain information about:

     • the turnover of the last financial year;
     • the number of employees;
     • the Ateco code of the main activity;
     • belonging to a group (if so, it is necessary to attach a report containing analytical information on the structure of the group and on the participation and contractual constraints, as well as the indication of the companies or company registers in which the advertising was carried out pursuant to article 2497-bis of the code. civ).

     The submission of the application will be complete if accompanied by specific mandatory attachments such as:

     - a clear and concise report on the equity, economic and financial situation of the company containing:

     a) the description of the company, the activity actually carried out and its business model;

     b) the type of economic-financial and patrimonial difficulties;

     c) a financial plan for the next six months;

     d) the industrial initiatives that are intended to be adopted (for example, containment of structural costs, new sales channels, closure of inefficient production lines);

     - the last three financial statements, if not already deposited with the company register, income and VAT returns;

     - a financial situation updated no more than 60 days ago;

     - a self-declaration of any pending appeals for bankruptcy requests or assessment of insolvency;

     - the list of creditors, specifying the amount of overdue and upcoming credits;

     - the single tax debt certificate (AdER);

     - the single certificate of contribution debts and insurance premiums (INPS, INAIL)

     - the central bank of Italy risks no earlier than 3 months.

     Any other attachments to be inserted into the platform are:

     • the request for the application of asset protection measures (art.6)
     • the model for the declaration of suspension of obligations and causes of dissolution (art.8).

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     Fiscale

     Investimenti all'estero: aspetti fiscali e oneri del contribuente

     Investimenti all'estero: aspetti fiscali e oneri del contribuente

     In our article "The crypto world: opportunity or risk" we talked about investments in cryptocurrencies and their fiscal relevance in the definition of foreign investments. This article…

     Obligations for investments abroad

     Today there are many Italian and foreign platforms that offer the possibility of trading with zero commissions. What is missing, however, is information relating to the related tax obligations. In short, the taxpayer is often not aware of the obligations he will have to fulfill in the case of investments abroad. Let's see why and what needs to be done.

     The national banks and platforms all act as tax withholding agents through the administered savings regime, managing all the tax aspects linked to investments.

     Unlike Italian institutions, however, foreign banks and platforms do not fulfill this function and, therefore, all tax obligations fall on the taxpayer who must independently - or with a tax consultant - act in this sense.

     The sections of the tax return for natural persons affected by the tax rules in relation to accounts or financial instruments held abroad are the following:

     • RW table: value of investments abroad and stamp duty

     Amounts held on foreign accounts or platforms must be indicated in this table. If during the year the average balance on the account or on the platform is higher than a certain threshold, there is an obligation to fill in the RW form. You will have to pay Ivafe equal to €34.20, i.e. the same stamp duty withheld from Italian accounts but, in this case, paid directly by the taxpayer.

     The same applies to financial instruments held such as, for example, shares and bonds whose value must always be declared in the RW table, and Ivafe must be paid equal to 0.2% of the value of such instruments at the end of the year.

     • RT framework: capital gains

     If financial instruments such as, for example, shares and bonds are sold during the year and capital gains are realized, the part of the return to be filled out is the RT part. The capital gain is always calculated as the difference between the amount collected (net, therefore, of any trading commissions) and the amount spent on an equity investment (therefore including any commissions). The rates are the same as those that apply in Italy: for shares, for example, it is always 26%.

     • RM framework: dividends, coupons and interests

     If coupons, profits, dividends or interest arise from the holding of financial instruments, the other part to fill in is the RM part.

     The rates are the same as those applied in Italy (in general 26% except for the necessary exceptions of 12.5% for coupons on government bonds).

     All values to be entered in the tax return must be in euros. If the investments are in foreign currencies, official exchange rates determined by order of the director of the Revenue Agency must be applied. The official exchange rates are published on a monthly basis to allow those who close accounts during the year to apply the value of the month in which the account was closed. For those who do not close relationships during the year, the official exchange rate for the month of December should be considered.

     Our firm is available for anyone interested in learning more about the topic.

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     Corporate

     The warning of the business crisis in 2022

     The warning of the business crisis in 2022

     The emergency legislation on business crises applicable from 15 November 2021, contained in Legislative Decree 118/2021, represents an epochal change in business crisis law, as already described in the previous…

     The new alert mechanism

     The lack of provisions on the alert of the business crisis, within the CNC, was filled by Legislative Decree 152/2021 which provided for a real alert mechanism for qualified public creditors such as INPS, Revenue Agency, Revenue Collection Agency. The new rules on the alert require qualified public creditors to report to the entrepreneur and the supervisory body, in the person of the president of the board of auditors, the non-payment of taxes and contributions, above a certain threshold, inviting the entrepreneur to submit a CNC request if the conditions are met.

     Conditions and deadlines for reporting

     Reports must be sent by named qualified public creditors in the presence of unpaid amounts; in particular, with regard to amounts due and not paid, the report to the entrepreneur and the president of the board of auditors must be sent:

     • by the INPS in the event of a delay of more than 90 days in the payment of social security contributions exceeding an amount, for companies with subordinate and para-subordinate workers, than 30% of those due in the previous year and the threshold of 15,000 euros, and, for those without the recalled workers, the threshold of 5,000 euros;
     • by the Agency Revenue, in the presence of an overdue and unpaid debt for VAT, resulting from the communication of the data of periodic payments (LIPE), exceeding 5,000 euros;
     • by the Revenue Revenue Agency, in the presence of credits entrusted to collection and overdue for more than 90 days, exceeding, for sole proprietorships, more than 100,000 euros, for partnerships 200,000 euros and, for other companies, 500,000 euros.

     The times with which the reports will be sent vary depending on the person required to report, distinguishing between those sent:

     • by the INPS and the Revenue Agency Collection which must be carried out within 60 days of the occurrence of the conditions or exceeding the thresholds indicated, via certified email or, failing that, by registered letter with acknowledgment of receipt;
     • by the Revenue Agency which must be carried out within 60 days of the deadline for submitting the communications of the data of the periodic VAT payments. (LIPE), together with the letter informing the taxpayer of the inconsistency of the payments made with respect to the declared tax.

     On the last point, it is worth remembering that VAT payers electronically transmit to the Revenue Agency a communication of the accounting data summarizing the periodic tax payments (LIPE) by the last day of the second month following each quarter (art 21-bis of Legislative Decree 05/31/2010 nr.78).

     In this sense, the communication of the data relating to the second quarter is an exception which is instead carried out by 16 September and with the possibility of communicating the data relating to the fourth quarter of sending, alternatively, with the annual VAT return which, in this case, must be presented by February of the year following the end of the tax period.

     The reporting mechanism starts in 2022

     The reports, which qualified public creditors are required to do, will be applied from this year, in particular:

     • for the INPS, the reports will concern debts ascertained from 1 January 2022;
     • the Revenue Agency will report the debts resulting from the communications relating to the 1st quarter of 2022;
     • for the Revenue Collection Agency, the reports will be made in relation to the loads entrusted to the collection agent from 1 July 2022.

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     Fiscale

     2021 financial statement: all companies will be able to take advantage of the stop on depreciation

     2021 financial statement: all companies will be able to take advantage of the stop on depreciation

     Let's go back to talking about the 2022 Budget Law, this time to highlight a new regulation that falls within the so-called Milleproroghe Decree: a new stop to depreciation for companies that prepare financial statements…

     It is necessary to specify that the derogating principle that we will talk about is not an absolute novelty but had already been introduced by legislative decree no. 104 of 08/14/2020, converted with law 10/13/2020 number 126, in paragraph 7-bis of article 60. The Decree, renamed the "August Decree", provided for a benefit for businesses or the possibility of suspend up to 100% depreciation for all fixed assets (tangible and intangible) relating to the 2020 financial statements.

     Given the evolution of the health emergency and the resulting difficult economic situation, however, the legislator had decided to extend the measure for the entire following financial year, inserting it in the 2022 Budget Law. For the 2021 budgets, therefore, the possibility of suspending depreciation remained unchanged, provided, however, that the recipients of the measure had not, in the previous administrative period, recognized 100% of the depreciation based on the annual cost of the fixed assets considered. In this way the legislator has narrowed the scope of the beneficiaries of the extension, excluding some entrepreneurs previously covered by the rule.

     This decision, imposed by the MEF, had a precise ratio: anyone who did not take advantage of the possibility of suspending depreciation by way of derogation in 2020 - the worst year in terms of both the health and economic crisis - would not have reasonable interest in taking advantage of it in 2021 and therefore should be excluded.

     With the conversion of the Legislative Decree of 30 December 2021, n. 228, known as the "Milleproroghe Decree", however, the situation has changed.

     The new regulation, decidedly focused on the Government's flexibility and willingness to support Italian companies in this moment of health and above all economic crisis, extends the derogatory extension to all subjects, overcoming the initial restriction of the sphere of application to subjects who had not carried out 100% of the annual depreciation in the 2020 financial year.

     For the rest, the rules remain unchanged: the book value of the asset in the balance sheet remains unchanged and the depreciation quotas not recognized in the income statement are charged in the following financial year. On a substantial level, the amortization plan for tangible and intangible assets is subject to a forced extension of at least two years.

     The obligation remains for companies to allocate the share of profits deriving from the failure to apply amortization to an unavailable reserve (as regulated by art. 60, c. 7-ter Legislative Decree 104/2020) and the indication in the explanatory notes, with adequate justification, of the influence of the exception on the representation of the equity, financial and economic situation of the company.

     In conclusion, the decision of the Italian legislator has certainly provided greater flexibility to the national economic system in a delicate moment like the one we are currently going through, but the rationalization given by the MEF decision seems to have been lost further confusing the situation

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     Terzo Settore

     Milleproroghe Decree: 2021 operating losses are frozen until 2026

     Milleproroghe Decree: 2021 operating losses are frozen until 2026

     New postponement of the deadlines for the maneuver to sterilize losses for joint-stock companies. This is provided for by the Milleproroghe Decree which postpones the coverage of losses of…

     By Carlo Locatelli

     The maneuver to sterilize operating losses, already provided for in article 6 of Legislative Decree no. 23 of 2020, subsequently amended by article 1, paragraph 266, of law no. 178/2020 (i.e. the “2021 Budget Law”) has been extended again thanks to a new postponement of the deadlines included in the amendment of the D.L. n. 228 of 2021, also known as the Milleproroghe decree. The amendment directly concerns art 6 in paragraph 1, whose reference to the date of 12/31/2020 is replaced with 12/31/2021.

     Through this regulation, all joint-stock companies (spa, sapa, srl and cooperatives) will be able to cover the losses recognized in the 2021 administrative period by the date of approval of the financial statements relating to the fifth subsequent financial year (therefore by the end of the 2026 administrative period).

     Remaining the reference "to the financial year in progress as of 31 December 2021", it can be deduced that the facilitation maneuver can also be used by entities having as their financial year the currently open administrative period 1/07/2021-30/06/2022, rather than the canonical 1/01/2021-31/12/2021.

     Furthermore, the five-year period envisaged for the coverage of losses arising in 2021 will be independent and autonomous from the time frame relating to the coverage of losses relating to the 2020 administrative period. The latter, therefore, must necessarily be covered by the date of approval of the financial statements relating to the fifth financial year following 2020, i.e. the date of approval of the financial statements for the 2025 financial year.

     As for the maneuver envisaged for the losses of the year 2020, the sterilization of the losses detected during the 2021 financial year allows the suspension of capital reduction obligations in the event of losses exceeding one third or recapitalization (in derogation of the provisions of articles 2446 of the Civil Code and 2447 of the Civil Code for spas and 2482 e ter of the Civil Code for limited liability companies, while is regulated by article 2545 – duodecies of the civil code for cooperatives). 

     For methodological purposes, it is therefore noted that:

     • if the loss, given its extent, "erodes" the share capital, the company will not be able to distribute its dividends until the capital is duly replenished, or reduced by a corresponding amount (as provided for by art. 2433 of the Civil Code, paragraph 3);
     • losses change the limits within which joint-stock companies can issue bond loans (indicated by art. 2412 of the Civil Code, or to the extent of double the share capital);
     • The legal reserve must be replenished until it reaches a value equal to fifth of the share capital, as provided for by art. 2430 of the Civil Code, and the loss is relevant for the purposes of this necessity.

     Finally, the real consistency of the capital, net of all losses previously ascertained, must emerge for the purposes of indication in the company's documents and correspondence (art. 2250 of the Civil Code, paragraph 2).

     With regards to the treatment of losses that emerged in the period in question, it is worth mentioning that the losses must be appropriately indicated and specified in the explanatory notes, specifying their origin in adequate schemes and statements.

     To find out more about the Milleproroghe decree, do not hesitate to contact one of our tax consultants.

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     Corporate

     CNC e misure protettive: le prime pronunce dei Tribunali

     CNC e misure protettive: le prime pronunce dei Tribunali

     Our in-depth journey on the negotiated settlement of the business crisis continues. Here we delve deeper into the institution of protective measures that the entrepreneur can access before the Court, t...

     By Alessandro Malerba

     Access to protective measures

     Article 6 of Legislative Decree 118/2021 which establishes the Negotiated Settlement of the Business Crisis (CNC) allows the entrepreneur in crisis who accesses the negotiated settlement to request the activation of certain protective measures with the aim of forbidding creditors from acquiring non-agreed pre-emption rights and to initiate or continue executive and precautionary actions on the assets of the company or entrepreneur.

     The aim is to allow the entrepreneur to negotiate a solution with creditors, protected from the prejudicial effects deriving from their legitimate individual initiatives such as seizures of assets or current accounts, seizures of supplies and assets and others. However, to be effective, the measures depend entirely on the ruling of a court which the debtor must appeal to at the same time as the publication of the request for admission to the settlement and the acceptance of the expert. According to the ruling of the Court of Brescia of 2 December 2021, one of the first on the matter, if there has not been acceptance from the expert the competent court cannot be asked to confirm the measures since these, in reality, never actually occurred.

     On the other hand, the orientation relating to the documentary deficiency is more plausible: if the publication of the request for access to the settlement was allowed even in the absence of some of the requested documents such as an updated financial situation, the six-month financial plan and the report on the industrial measures to be adopted (here for more information on the application), the judge and the expert must be allowed to consult functionally for the decision, so that the power-duty of integration would be exercisable (Court of Milan, 28 December 2021).

     Not even the failure to actually start negotiations with the creditors does not prevent the confirmation - understandable in such an initial phase of the settlement: this was confirmed by the Court of Florence (sentence of 29 December 2021) which however requires the appointed expert to confirm that despite the absence of a completed plan, the reorganization appears reasonably achievable in light of the practical test, that the accounting situations are correct and reliable, and that the administration of the company is sufficiently.

     The breadth of the measures

     The orientation that emerges in light of the first rulings seems to be based on selectivity criteria.

     In line with community indications and the Insolvency directive (2019/1023), the Court of Rome with ruling dated 3/02/2022 confirmed the principle according to which the so-called model automatic stay (which inhibits individual enforcement actions for all creditors, without distinction) cannot be applied indiscriminately but only towards those who have already taken action with individual initiatives whose continuation may compromise the continuity and resolution of the crisis or respect for the hierarchy of pre-emptions. For those who are excluded from the automatic stay, however, it is possible to establish individual executive actions during the course of the composition.

     In any case, the protective measures, as argued by the Court of Milan (decision of 27 January 2022) in perfect ccontinuity with the past (Court of Cassation, sentence 25802/2015), determine the only suspension, and not the ineffectiveness, of the enforcement procedures already established, thus not allowing the release of the sums already affected by seizure, which remain unavailable to the debtor until the outcome of the settlement.

     If this orientation based on selectivity were confirmed in judicial practice, the debtor would need to constantly check the monitoring procedures introduced by creditors not inhibited by the protective measures, with the aim of progressively requesting their inclusion, before the precautionary measures are consolidated, making the affected sums unavailable, with negative effects on the debtor's already weak ability to find coverage for financial needs of the company in crisis for the purposes of complying with the proposed plan.

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     Fiscale

     Rivalutazione quote e terreni: si riaprono i termini, ma aumenta l’aliquota

     Rivalutazione quote e terreni: si riaprono i termini, ma aumenta l’aliquota

     On 18 February 2022, the so-called law decree was approved. Energy renewing the revaluation of shareholdings and land for natural persons, partnerships and commercial entities for 2022. The reevaluation…

     Article 30 regulates the new terms for the revaluation of the assets in question, even if the facilitative measure is certainly not new: the institution of revaluation was born with law 448/2001 and has been proposed several times by the legislator in the last twenty years (in 2021 the terms were even reopened twice). For this reason, in the face of public expectation of yet another renewal, its lack in the 2022 Budget Law, given the continuous reopenings, had prohibited both possible beneficiaries and professionals.

     There is, however, some innovation that the renewal brings with it, for example the increase of three percentage points in the rate (from 11% to 14%) as well as a limitation of the shareholdings subject to the maneuver, which will be able to benefit from the redetermination only if owned since 01/01/2022. In short, those who do not demonstrate the requirement of possession of unlisted shareholdings as of 12/31/2021 and those who have come into possession of the shareholdings through means other than purchase and sale, for example through succession or donation, cannot benefit from the institution in question.

     Persons and assets

     Further innovation that the

     simple companies and entities equivalent to them pursuant to art. 5 of the Presidential Decree of 1986, n. 917;

     non-resident entities, and also not referable to permanent establishments (taking due account of conventions regarding double taxation);

     natural persons for operations inherent to the ordinary exercise of business activity.

     However, holders of business income are excluded from the relief measure.

     As regards, however, the assets subject to revaluation, they are distinguished in qualified and non-qualified shareholdings and land (whether agricultural or building). In addition to these three categories of assets, shareholdings registered in the name of trust companies are added, provided that the trustor is already among the beneficiaries listed above.

     With regards to assets, an in-depth analysis of revaluable shareholdings (necessarily unlisted) is interesting, which can be identifiable by:

     • shareholdings made up of shares;
     • shareholdings in the assets of companies not represented by shareholdings, such as shares in limited liability companies or shareholdings in partnerships;
     • securities or rights through which it is possible to obtain the aforementioned shareholdings, including option rights and convertible bonds.

     Revaluation phases

     The procedure consists of two phases, necessarily consecutive and distinct.

     The first step is the drafting of a sworn appraisal estimating the value of the shareholding or land; the appraisal must be produced by an accredited professional (for example an engineer for land or a chartered accountant and/or auditor for shareholdings).

     Subsequently, the beneficiary must pay the substitute tax, equal to 14% of the value resulting from the sworn appraisal previously obtained. The percentage is unique both for the redetermination of land and for the revaluation of shareholdings.

     For the payment, whose new deadline is 11/15/2022, it is possible to opt either for the single payment or for the installment payment in three phases (taking care to pay the first installment by 11/15/2022, while the two subsequent installments will expire on the same date in the years 2023 and 2024); the code to use is always the tax code 8055.

     In case of omitted or insufficient payment, in any case, you can take advantage, pursuant to art. 13 of Legislative Decree of 1993, n. 472, of voluntary repentance, provided that the irregularity has not already been ascertained.

     Finally, as regards the convenience of the institution, this must be analyzed and weighed according to the cases that come into consideration. In general, it is good practice to compare the total due in the case of ordinary taxation on the capital gain and the total amount of the substitute tax resulting from the redetermination.

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     Lavoro

     When the fight against illegal work (alone) is not enough

     When the fight against illegal work (alone) is not enough

     D.L. Simplifications and labor on construction bonuses: many doubts following the mandatory nature of the DURC (Single Document of Contribution Regularity) on construction sites for amounts exceeding 70 thousand euros. The…

     By Emilio Veneziano

     Adequacy of labor and construction bonuses

     The application of the combined regulations of the Legislative Decree is generating quite a few doubts. 143/2021, implementing art.8 paragraph 10-bis of the Legislative Decree. Simplifications, with art.4 of Legislative Decree 13/2022 published in the Official Gazette. 25.2.2022, n. 47, on the issue of the impact of workforce adequacy on construction bonuses.

     In particular, the Legislative Decree 143/2021 provides for the compulsory adequacy DURC starting from 1 November 2021 for every public and private construction site for an amount exceeding 70 thousand euros. The verification of adequacy refers to the incidence of manpower relating to the specific intervention carried out in the construction sector, both in the context of public and private works carried out by entrusted companies, under contract or subcontract, or by self-employed workers involved in any capacity in their execution. The objective of the decree is evidently to fight illegal work and to ensure that the number of workers on site is proportionate to the task entrusted to the company. The above provision has therefore defined a system for verifying the adequacy of the impact of the labor employed in carrying out construction works, implementing the provision referred to in art. 8 paragraph 10-bis of Legislative Decree 76/2020. The adequacy certificate will be issued, within 10 days of the request, by the territorially competent Cassa Edile/Edilcassa, upon request of the entrusted company or the person delegated by it or by the client. If adequacy is not found, a regularization mechanism is envisaged, in the absence of which the negative outcome of the adequacy check referring to the individual work (public or private) affects, from the date of issue, the subsequent checks of contribution regularity aimed at issuing the online DURC for the entrusted company.

     This rule was included in article 4 of Legislative Decree 13/2022 published in the Official Gazette. 25.2.2022, n. 47, which integrates the art. 1, Law n. 234/2021 (Financial Law 2022) with the new paragraph 43-bis pursuant to which for the construction works referred to in Annex X, Legislative Decree no. 81/2008 (construction, maintenance, repair, demolition, conservation, rehabilitation, renovation or equipment works, the transformation / renovation / dismantling of fixed, permanent or temporary works, in masonry / reinforced concrete / metal / wood / other materials, including the structural parts of electricity lines and the structural parts of electrical systems, road, railway, hydraulic, maritime, hydroelectric works and, only for the part involving construction or engineering works civil, land reclamation / forestry / earthwork works, building construction or civil engineering works, excavations, assembly and dismantling of prefabricated elements used for the construction of building or civil engineering works) of an amount exceeding € 70,000, the benefits of which:

     • articles. 119 (110% deduction), 119-ter (75% deduction for overcoming and eliminating architectural barriers), 120 (tax credit for the adaptation of working environments) and 121 (option for discount on invoice and transfer of credit), DL no. 34/2020;
     • art. 16, paragraph 2, DL n. 63/2013 (so-called “Furniture bonus”); 
     • art. 1, paragraph 12, Law no. 205/2017 (so-called “Green Bonus”); 
     • art. 1, paragraph 219, Law no. 160/2019 (so-called “Bonus facciate”); 

     are recognized provided that the application of the national and territorial collective agreements of the construction sector, stipulated by the employer and trade union associations pursuant to art., is expressly specified in the deed of assignment of the works. 51, Legislative Decree no. 81/2015. The collective agreement applied, in addition to the deed of assignment of the works, must also be specified in the invoices issued in relation to the execution of the works. The authorized subjects referred to in art. 3, paragraph 3, letter. a) and b), Presidential Decree no. 322/98 (accountants / labor consultants / etc.) and those responsible for tax assistance of the CAFs referred to in the art. 32, Legislative Decree no. 241/97, for the purpose of issuing the approval of conformity, they are required to verify that the collective agreement applied is indicated in the deed of assignment of the works and reported in the invoices issued by the executors of the works.

   INCOME SIMILAR TO THOSE FROM EMPLOYEES AND OTHERS INCOME
   Income	Deduction amount
   Up to €5,500	1,265
   €5,501 - €28,000	500 + (1,265 - 500) * [(28,000 – income) / (28,000- 5,500)]
   €28,001 - €50,000	500 * [(50,000 – income) / (50,000 – 28,000)]
   Above €50,000	Not expected

   N.B. the aforementioned additional obligations come into force 90 days after the date of entry into force of Legislative Decree no. 13/2022 and therefore starting from 27.5.2022 and apply with reference to works started after that date.

   Hence the doubts about the disrecognition of construction bonuses in the event of lack of adequate manpower, exacerbated by recent FAQs of the National Joint Commission for Construction Funds (CNCE) published on 15 February 2022.

   In summary, according to the CNCE, the effects of the lack of congruity could be reflected, indirectly, also on the failure to recognize the benefits provided for by the tax legislation, regarding tax deductions, considering that the art. 5, paragraph 6, of Ministerial Decree no. 143/21 provides verbatim that "In the absence of regularisation,the outcome of the adequacy check referring to the individual work, public and private, affects, from the date of issue, the subsequent checks of regularity of contributionsaimed at issuing the Durc online for the entrusted company, [...]".

   In this case, therefore, the provision referred to in art occurs. 4 of Ministerial Decree 41/98 letter d) (“Cases of denial of the deduction” which establishes that “The deduction is not recognized in the case of: d) violation of the rules on the protection of health and safety in the workplace and on construction sites, as well as contributory obligations ascertained by the competent bodies and communicated to the territorially competent regional revenue directorate").

   In conclusion, considering the concerns among operators in the sector, a clarifying intervention on the topic by the Revenue Agency would be appropriate.