Debt restructuring agreement: substantial changes to the plan allowed after creditors’ approval to ensure enforcement of the agreement.
The legislation on debt restructuring agreements (Article 182 bis of the Bankruptcy Law) did not provide specific rules for cases in which the entrepreneur, after the approval, had to modify the plan in the course of execution, due to supervening circumstances (think of exceptional circumstances such as the Covid-19 and the consequences on the economic dynamics of the market). Law no. 69/2021 has filled this gap.
Namely, said Law by introducing paragraph 8 to Article 182 bis of the Bankruptcy Law, allows the unilateral substantial amendment of the plan through the renewal of the report by the entrepreneur and the publication of the report, together with the amended plan, in the register of companies.
The Covid-19 pandemic has brought to the forefront the problem of the impossibility of fulfilling the deadlines laid down in restructuring agreements. This problem was exacerbated by the lack of a specific rule to regulate the cases of modification of the plan of the debt restructuring agreement in progress.
On 21st May, Law No. 69/2021 was published in the Official Gazette, converting Law Decree No. 41/2021, the so-called “Support Decree”, which fills this gap by introducing the eighth paragraph to Article 182 bis of the Bankruptcy Law (which anticipates, in fact, a provision contained in Article 58, paragraph 2, of the Code of Business Crisis and Insolvency, which is expected to enter into force next 1st September).
In particular, the new paragraph 8 provides that if, after the approval of a debt restructuring agreement, substantial amendments to the plan are necessary to ensure the implementation of the agreement, the entrepreneur shall make them by renewing the attestation report. In this case, the amended plan and the report are published in the Register of companies and creditors are notified of the publication by registered letter or certified e-mail. Creditors may file an objection with the court within 30 days of receiving the notice.
The rule intends to facilitate the entrepreneur during the execution phase of the debt restructuring agreement, even when economic events occurring after the approval determine the need for substantial changes, and to safeguard the company while protecting creditors.
Moreover, this provision could help to align the treatment of amendments to debt restructuring agreements that are stalled due to the absence of formal indications, as was previously the case.
It remains to be understood, in actual terms, which changes – of a “substantial” nature – could be legitimately made as a result of the aforementioned legislation and, in particular, whether the changes should be limited only to the modalities and the time of fulfilment or can also extend to the quantum of the credit to be satisfied.
Which are the powers of the liquidator of a limited liability company appointed by the Court?
The Courts of Milan and Rome confirm the case law attributing to the liquidators appointed by the Court, even in the absence of a resolution of the quotaholders’ meeting, all the powers assigned by the Civil Code pursuant to Article 2489, first paragraph, in order for them to perform all useful acts for the liquidation of the company.
The appointment of liquidators for limited liability companies, as well as their replacement and the determination of their powers, is subject to a decision of the quotaholders adopted with the majorities provided for the amendments to the deed of incorporation, in accordance with Article 2487 of the Italian Civil Code.
Although there is no express reference in Article 2479 bis to the decisions referred to in Article 2487 of the Italian Civil Code, it must be considered that these are decisions that must necessarily be adopted by the quotaholders’ meeting, both because of the wording of the provision in question and, above all, for the analogy of the case at issue with the one under Article 2479, no. 5.
The liquidation regulations identify three different cases in which the entitled parties – i.e. individual quotaholders or directors or statutory auditors – may start a legal proceedings before the Court:
– the first provided for in Article 2485, paragraph 2, of the Italian Civil Code aimed at ascertaining the cause of dissolution, in the event of inertia on the part of the directors in ascertaining the cause of dissolution;
– once the cause of dissolution has been ascertained and publicised, the Court may be asked to call the quotaholders’ meeting if the directors have failed to do so;
– if the quotaholders’ meeting does not take place or does not pass a resolution, the Court may be asked to issue a decree for the decisions referred to in Article 2487 of the Italian Civil Code.
Therefore, in the event that the quotaholders’ meeting is called, but it does not appoint a liquidator, paragraph 2 of Article 2487 of the Italian Civil Code establishes a supplementary power of the Court, which, in our opinion, falls within the jurisdiction of the Business Section of the Court determined on the basis of the registered office of the company. However, according to different case law, the ordinary Court could be competent.
We deem that, in addition to the company, all quotaholders are necessary parties to the proceedings for the appointment of the liquidator, except for those among them who, at the quotaholders’ meeting, have instructed the board of directors to submit the petition for the judicial appointment of the liquidator.
The appointment of the liquidator pursuant to Article 2487, second paragraph, of the Italian Civil Code (as well as the ascertainment of the state of dissolution pursuant to Article 2485, second paragraph, of the Civil Code) by the Court is part of the voluntary jurisdiction proceedings, i.e. those proceedings in which the Court does not resolve a dispute on rights but issues measures intended to integrate the regulatory framework upon the request by the interested parties.
In particular, the decision of voluntary jurisdiction by the Court is not decisive with respect to the issues controversial between the parties and is not intended to become a res judicata, in the present case in relation to the Court’s power to appoint the liquidators.
The assessment of the Court the case is carried out incidenter tantum, without any definitive finding either as to the dissolution or as to the causes which would have led to it, and continues even where there is disagreement between the parties as to the cause of dissolution, so much so that any interested party, provided that he or she is entitled to bring an action, may initiate ordinary proceedings on such matters and, if the cause of dissolution is proved not to exist, may obtain the removal of the decree and its effects.
The Court’s appointment of the liquidator does not give rise to any judicial liquidation procedure, as it is a mere substitute for the ineffectiveness of the quotaholders’ meeting, whose powers, once the deadlock has been overcome, remain the ordinary ones, with the result that the quotaholders’ meeting, with the majorities provided for the various cases: may establish the liquidation criteria pursuant to Article 2487 of the Italian Civil Code, may amend the powers attributed to the liquidator by the Court, may establish the liquidator’s remuneration, may remove the liquidator and replace him. Moreover, the liquidator appointed by the Court is not qualified by law as an auxiliary of the judge or as a public official.
With reference to the powers of the liquidator, the Courts of Milan and Rome, except in the case of specific requests by the parties, by consolidated case law confer on the liquidator appointed by them the “powers of law”, i.e. those assigned by the Italian Civil Code in Article 2489, first paragraph: “the power to perform all acts useful for the liquidation of the company”. Such powers consist, in particular, of the implementation of the corporate activities and the payment of the company’s debts (see Supreme Court decision 13867/2017), while there is no need for the subsequent “authorisation” by the Court to carry out individual acts. Moreover, the power to carry out all acts useful for the liquidation conferred on the liquidator appointed by the Court under the above-mentioned provision of the Italian Civil Code operates automatically and does not require a subsequent resolution by the shareholders’ meeting, which, at most, may indicate to the liquidator, with the majorities provided for in the articles of association, the criteria for the liquidation or establish certain limits to his powers, without, however, restricting them to such an extent as to preclude the purpose of liquidating the company.
Article 2487-bis of the Italian Civil Code requires the liquidator, including those appointed by the court, to register his/her appointment in the Commercial Register. It is therefore considered that the Chancellery must notify the appointment to the appointed liquidator, as well as the parties if the order was not adopted at the hearing, so that s/he can decide whether or not to accept the appointment, in the first case by registering his/her appointment. From that moment s/he assumes the legal representation of the company.
Finally, as a general rule, the Court does not quantify the liquidator’s remuneration in its decree of appointment; it is therefore up to the quotaholders’ meeting to establish a remuneration for the activities carried out by the liquidator. If the quotaholders’ meeting does not decide on this matter, the remuneration will be established by the Court at the end of a judicial process. A parameter to be taken into account to establish such remuneration may be the tariffs provided for by article 20 of Ministerial Decree 140/2012 for the activity of liquidation of companies or by article 19 of the same Ministerial Decree for the activity of administration of companies, in the event that the provisional operation of the company in liquidation is provided for.
Equal opportunities (gender and generational) in PNRR recruitment: is there any sign of a breakthrough?
The imminent opening of procedures related to public contracts financed, in whole or in part, with the resources provided by the Piano di Ripresa e Resilienza (“PNRR” – Recovery and Resilience Plan) and the Piano Nazionale Complementare (“PNC” – Complementary National Plan) has provided an opportunity to introduce measures useful to pursue policies of equal opportunities policies that are both generational and gender-based.
In particular, pursuant to Article 47 of Law Decree 77/2021 (so called Decreto Semplificazioni), companies that intend to participate in a tender or submit a bid relating to such public contracts must provide documentation certifying the employee situation in respect of equal opportunities and ensure the recruitment of young people and women.
The obligations vary according to the number of employees of the economic operator that is applying:
(i) those employing more than one hundred employees are obliged to produce the report on the situation of male and female personnel at the time of submitting the application to participate or the offer, failure of which will result in penalty of exclusion from the tender or the offer;
(ii) on the other hand, employers who employ fifteen or more employees shall, within six months after the conclusion of the contract, submit – to the contracting authority – a gender report on the situation of male and female staff in each of the professions and in relation to the status of recruitment, training, professional promotions, levels, changes of category or qualification, other mobility phenomena, the intervention of the Wages Guarantee Fund, dismissals, early retirements and retirements, and remuneration actually paid.
In addition, in the calls for tender, or in the notices and invitations, contracting authorities have to include specific clauses aimed at the inclusion of criteria to promote gender equality and the recruitment of young people (i.e. under 36 years old) and women, both as necessary requirements and as additional bonus requirements of the offer.
Specifically, it is a necessary requisite for participation to ensure that at least 30% of the recruitment for the execution of the contract or for the implementation of related or instrumental activities is for the employment of young people and women.
On the other hand, with regard to the bonus requirements, additional points are awarded to the tenderer or candidate who, among other things:
– has not been involved in discriminatory behaviour;
– uses or commits to use specific tools to reconcile the needs of care, life and work for its employees, as well as innovative ways to organize work;
– provides for the recruitment of young people and women beyond the mandatory 30% quota;
– has complied with the principles of gender equality in the last three years and adopted specific measures to promote generational and gender equality, including taking into account the ratio of men to women in recruitment, pay levels and the appointment of senior positions.
Also of interest are the sanctions applied in the event of breach of the obligations under the decree examined.
The exclusion from the tender procedure has already been mentioned regarding employers with more than 100 employees who fail to submit the report on the situation of male and female employees simultaneously with the application to participate or for the offer.
In other cases, however, contracts must provide for the application of penalties, in proportion to the amount of the contract, in the event of violation of the obligation to recruit the required quotas of young people and women.
Regarding employers with at least 15 employees, failure to send the gender report entails, in addition to penalties, the impossibility for the company to participate, not even in a temporary grouping, for a period of 12 months, in further award procedures relating to public finance investments, in whole or in part, with the resources of the PNRR and PNC.
It is augured that the ministerial guidelines will not delay in arriving. According to the government’s intentions, they are aimed at defining ‘the methods and application criteria of the measures envisaged (…), indicated reward measures and prepared models of clauses to be included in the calls for tender differentiated by sector, type and nature of the contract or project‘ and should be issued by 31 July 2021.
Speaking about waiting, on a “light” note: six months after the entry into force of the Budget Law 2021, the contribution facility provided on that occasion and consisting of total exemption in the case of hiring disadvantaged women, cannot yet be used as it is subject to the authorisation of the European Commission. It is not clear whether the Italian Government has forgotten to forward the notification to the European Commission, or whether the latter has not yet expressed its opinion regarding issuing the relevant authorization.
Is the notification of the notice of assessment to the previous residence indicated in the income tax return legitimate?
It is legitimate to serve the notice of assessment to the taxpayer who has changed his/her residence but has indicated the former residence in his/her income tax return, even in the subsequent fiscal years. This is the conclusion reached by the Italian Court of Cassation with decision no. 18343, deposited on 20 May 2021.
In the event that a notice of assessment is notified to the taxpayer’s former residence, the relevant notification is valid to the extent that it occurs at the address indicated in his/her income tax return, i.e., the only address to be taken into consideration for this activity according to the principle of reliance governing the conduct of both parties of the tax obligations.
This is the conclusion reached by the Italian Court of Cassation with decision no. 13843 of 20 May 2021 rejecting a taxpayer’s appeal by confirming the legitimacy of a tax bill resulting from the failure to appeal a premonitory notice of assessment.
In particular, the Italian Court of Cassation has specified that although the taxpayer has changed his/her residence address in the civil records, there is a difference between the civil residence and that indicated in the income tax return (i.e., the “tax domicile”). In the latter case, indeed, the notification effected at the address indicated in the income tax return must be considered valid, despite the fact that this address is different, irrespective of whether as a result of a mistake or malice, from that included in the civil records.
The above-mentioned conclusions are grounded on the consolidated jurisprudence of the same Court stating that the indication in the income tax return of the taxpayer’s residence shall be done in good faith, in compliance with the principle of reliance that must guide the conduct of both parties of the tax obligations (see Court of Cassation, decisions no. 4412/2020 and no. 24292/2018).
Accordingly, the taxpayer who indicated a tax domicile in his/her income tax return that is different from the actual one, cannot invoke this discrepancy, also benefiting from a potential mistake, to rebut the legitimacy and the invalidity of the notice of assessment made by the Revenue Office to the tax domicile which he/she indicated.
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