What is trust law?

Tax assessments and notices of assessment by the Revenue Agency: who shelters the house in the assets can avoid the attachment?

You have received numerous payment cards and now your debt with the Revenue Recovery Agency has exceeded € 120 thousand. So you are afraid of being subject to a real estate foreclosure. Fortunately, a few years ago, on the advice of a good notary, you have entered into a patrimonial fund and, inside, you have entered the house. Now you feel you are protected by this guarantee and you are no longer afraid of payment reminders or mortgages. But is it really like that? In the case of tax debts, is the asset protection fund protected? Unfortunately, I have to give you bad news: despite the numerous limitations to the real estate foreclosure introduced in 2013 against the agent of the collection, among these is not mentioned the patrimonial fund. Moreover, even recent jurisprudence believes that the asset fund can be attacked when it comes to tax debts. Nevertheless, there are other forms of protection to which you can hold on to your hopes. Let’s try to see how things are at https://offshorecitizen.net/asset-protection/.

The patrimonial fund is a sort of screen, a glass bell that is realized with a notarial deed and which serves to protect real estate, cars, motorcycles and credit instruments from possible foreclosures. In essence, all the goods entered (ideally, since it is only a legal and not material protection) in the assets are bound to the needs of the family and, therefore, can not be attacked by creditors. But with some exceptions. Here they are.

Trust Law of Asset Protection

First of all, in order to “work”, the asset fund must have been set up before the debt was born; the fund created after, even before the agreement, cannot be opposed to the creditor.  

Let’s take two examples to better understand the issue. A person does not pay the IRPEF of 2019. A few months later he realizes a patrimonial fund, comforted by the fact that he has not yet received any notice of assessment or tax assessments. In reality, the fund is not useful because the debt has already arisen.

Similarly, imagine a person taking out a mortgage with a bank and pay the installments on a regular basis. At this juncture stipulates a patrimonial fund. Two years later he was fired and interrupted his payments. Here too, the patrimonial fund does not protect it since it was established after the birth of the debt even if it was still in compliance with the payments.

Even the fund set up before the birth of the debt, however, is shaky. It becomes definitive only after five years. In fact, before this time, the creditor can make it ineffective – with the so-called revocation action – if it shows that the debtor, once the fund was set up, stripped of all his assets and left the creditors without any guarantee.

For example, a person owning only one house, included in the asset fund, and a debt of 100 thousand euros may be subject to revocation. On the other hand, a person who owns three houses, only one of which is included in the fund, and a debt of € 200 thousand cannot be revoked.

Basically, the fund may be subjected to revocation for five years if the creditor demonstrates that the debtor has used it in order to defraud him and take away the assets that can be seized.

The needs of the family

The patrimonial fund does not protect from debts contracted for the needs of the family, even if they arose after its establishment. Only debts arising from voluntary expenses (eg travel, luxury cars, entertainment, etc.) or for investment purposes do not allow foreclosure of the assets of the fund.  

So, for example, if a person does not pay the condominium – since it is a charge related to the house and therefore to a family need – the assets can be attacked; the same applies to debts contracted for clothing, cars, etc.  

Does the asset fund protect against tax debts?

Many taxpayers have resorted to the equity fund to protect themselves from possible debts arising from tax defaults. Thus, those with a fund often failed to pay taxes such as income tax, VAT, etc.  

Precisely to put a stop to this evasive phenomenon, the Court of Cassation has espoused a very rigorous interpretation: tax debts must be considered contracts for “family needs”; therefore, even if they arose after the establishment of the fund, they can also allow the distraint of the house.  

Result: the house with the asset fund is distrained by the Revenue Collection Agency and any other agent of the collection even if the fund was set up prior to the notification of the portfolio or the birth of the debt.

This applies to taxes related to work (for example, Iva, Ires, Irpef) and indirect taxes (for example, Imu, Tasi, Tari, etc.). After all, the work is aimed at obtaining a profit and this – no doubt – is a means of sustaining the family.  

Even the Supreme Court considered legitimate the execution on the assets for debts arising from fines for violations of the Highway Code and outstanding contributions.

The same argument obviously applies, and a fortiori, for the mortgage: this fact, not being an act of forced execution but only a precautionary measure, can well be registered on the properties transferred to the equity fund.

Recently, the Supreme Court has said that the property of the alleged evader is also sequestrable even if it is set up in a balance sheet.

Capital base built after receipt of the folders

If it is true that the capital fund does not protect from tax debts and tax assessments when it was set up before the debts themselves, this is even more so when it is created later. On the contrary, in this case, the crime of ” fraudulent subtraction to the payment of taxes ” is also triggered if the arrears pertain to Irpef or VAT and exceeds 50 thousand euros.

Foreclosure of the balance sheet: when?

However, the fact remains that, with or without assets, the tax collector is obliged to comply with all other limits relating to property foreclosure. And therefore:

  • the mortgage can be registered only if the debt exceeds 20 thousand euro ;
  • the attachment can only be commenced if the debt exceeds € 120 thousand and the sum of the value of all the debtor’s properties exceeds € 120 thousand;
  • the attachment can never be initiated – regardless of the size of the debt – on the ” first home ” or on the only property owned by the taxpayer, on the condition that it is used as a city residence and place of residence, not luxury.

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