The Super bonus 110% it represented a revolution in the construction sector, offering an important fiscal lever for the energy efficiency and safety of buildings. However, the management of tax credits deriving from these benefits becomes particularly complex when a company is in judicial liquidation proceedings.
Recently, the Revenue Agency has provided essential clarifications on how these credits they can be used or given awayespecially in the presence of overdue tax debts.
But what happens if a company wants to sell the credits deriving from the Superbonus to divide the proceeds among the creditors? What regulatory constraints prevent this operation? And what are the priorities established by law?
Let’s discover the answers to these crucial questions together.
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The question on the Superbonus posed to the Revenue Agency
The company subject to judicial liquidation submitted a specific question to the Revenue Agency regarding the tax credits deriving from the Super bonus 110%. Specifically, the company asked if it was possible transfer these credits to third partiesavoiding forced compensation with its overdue tax debts, and using the proceeds of the sale to satisfy creditors according to the principle of par condicio creditorum.
The main doubt raised by the applicant concerns the nature of these credits: whether they should be considered real credits towards the Treasury, therefore subject to mandatory compensation, or whether, on the contrary, they can be classified exclusively as freely transferable benefits according to the rules institutional.
This distinction is fundamental to establish the company’s operational freedom in the use of accrued credits.
The objective of the question is to clarify whether the transfer of credits can be opposed by the Revenue Agency by virtue of the accumulated tax debts, or whether, instead, it is possible to proceed without any constraints, thus contributing to maximizing the resources available to creditors.
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The Agency’s clarifications
With answer no. 237/2024, the Revenue Agency has provided detailed indications on the treatment of tax credits accrued through the Super bonus 110% in the context of judicial liquidation procedures.
The document underlines that, in the presence of overdue tax debts exceeding 100,000 euros, the forced compensation also applies to subsidized credits, including those deriving from the Superbonus. This measure is justified by the need to guarantee safe collection for the Treasury and to prevent the recovery of taxes from being compromised by an indiscriminate assignment of credits.
A particularly relevant aspect is that, although article 121, paragraph 3-bis, of the Rilancio Decree provides for the suspension of the use of credits in compensation under certain conditions, this provision is not yet applicable in the absence of an implementing regulation. Therefore, at the moment, the general rules on compensation of tax debts apply.
This position strengthens the protection of public creditors, but requires companies in financial difficulty to reconsider the strategies for using and transferring Superbonus credits, in compliance with current regulations.
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The legislation on tax credits and the Superbonus
Articles 119 and 121 of the Relaunch Decree (DL 34/2020) introduced the Super bonus 110%a tax break that allowed obtaining a 110% deduction for energy efficiency interventions, building safety and other construction works required by law. The great innovation of this instrument consisted in the possibility of transforming the tax deduction into transferable tax credits, thus increasing immediate liquidity for individuals and businesses.
These credits can be used directly to offset tax debts or transferred to third parties, such as financial institutions or other businesses, to generate useful resources. However, the legislation places restrictions.
Article 121, paragraph 3-bis, establishes that the tax credits present on the electronic platform of the Revenue Agency they cannot be used as compensation in the presence of tax debts registered in the register exceeding 10,000 eurosunless specific conditions are met.
This special legislation reflects the desire to ensure that the Superbonus is used in compliance with tax obligations, while protecting the rights of tax creditors.
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The role of judicial liquidation and the fate of Superbonus credits
When a company that has accrued tax credits deriving from Super bonus 110% enters into judicial liquidation, the management of these credits takes on crucial importance. The Business Crisis and Insolvency Code (CCII), in article 155, regulates the compensation of credits and debts in the context of insolvency proceedings.
This article, taking up the regulations of the former bankruptcy law, allows creditors to offset their debts towards the debtor undergoing liquidation with the credits claimed, provided that they are homogeneous, liquid and collectable.
In the specific case of the Superbonus, the Revenue Agency has clarified that these credits, despite being facilitative, do not escape forced compensation with overdue tax debts. This priority reflects the need to guarantee a certain recovery of the sums owed to the Treasury, reducing the risk of partial insolvencies at the end of the procedure.
This approach, while on the one hand protecting the tax authorities, on the other limits the possibilities for the company to use or sell the credits to obtain immediate liquidity.
