On 10 August last, the decree number 114 of 25 May 2021 of the Ministry of Economy and Finance in agreement with the Ministry of Justice was published in the Official Gazette. This decree governs the pledge to guarantee the credits relating to the business activity, facilitating access to financing for entrepreneurs, who will be able to use a movable asset (tangible or intangible, present or future) to guarantee the credit requested, without the necessary and traditional dispossession.
With this method it will therefore be possible to continue to use the pledged asset also to be able to transform and / or replace it with similar assets. The reference to trademarks, patents and industrial or intellectual property rights, as well as to shares and shareholdings, is also of innovative significance, since the legislator has included them among the possible assets subject to registration.
The MEF provision simplifies and digitizes a large part of the process: within eight months of the entry into force of decree no. 114 (ie by April 25, 2022) the IT system that manages the “Pledge Register” must be completed in order to create the IT system. This Register of non-possessing personal pledges, managed by the Revenue Agency under the supervision of the Ministry of Justice, and aimed at ensuring the legitimacy of the administrative activity and of the procedures set up for its management. It will be held by a special office that provides for its administration in accordance with the provisions of the law, it will be directed by a registrar appointed by the director of the Revenue Agency, who will annually send the summary data of the management to the Ministry of Justice.
In this register, the formalities presented will be entered daily, according to the order of receipt, indicating the order number, the day of the request, the person of the applicant and the persons for whom the request is made, the date of the constitutive title of the non-possessory pledge presented with the application and the subject of the request.
While waiting for the complete operation of this new procedure, a further chance to obtain liquidity from the companies engaged in the construction work in recent months, could be represented by the pledge to the bank of the tax credit deriving from the Superbonus. 110%.
In fact, art. 119 of the Dl. 34 of May 19, 2020 (Relaunch Decree) provided for the possibility for condominiums and natural persons, as well as for Autonomous Housing Institutes, to obtain a tax deduction equal to 110% for expenses incurred from July 1, 2020 to 31 December 2022 (the latter date has been extended following subsequent legislative amendments / additions that have occurred up to now), for a specific series of energy efficiency and seismic risk reduction interventions. As an alternative to the direct use of the envisaged tax deduction, art. 121 allows you to choose between two options:
1) the discount on the invoice, corresponding to a contribution in the form of a discount on the amount due, in compliance with the prescribed expense limits, to the supplier who carried out the interventions and recoverable from the same in the form of a tax credit. The tax credit can, in turn, be subsequently transferred to other subjects, including banks and other financial intermediaries;
2) transformation of the tax deduction into a tax credit, with the option of subsequent transfer to other subjects, including banks and other financial intermediaries.
Considering that art. 121, paragraph 1, lett. b), of the Relaunch Decree precisely allows for the free transfer of the tax credit and this also in favor of banks and other financial intermediaries, therefore, the case of the transfer as guarantee of the tax credit in favor of the bank.
Such a guarantee can take place in the form of an irregular pledge, with immediate transfer to the bank of the ownership of the tax credit which will be entitled to acquire, in the event of default by the debtor, the tax credit assigned to it.
The pledge relating to the tax credit is configured as a credit pledge, or as a guarantee in favor of the creditor that is realized with the delivery by the debtor (or a third party) of the document showing his credit right against a third party.
On this point, pursuant to art. 2800 of the Italian Civil Code, in order for pre-emption to take place in the credit pledge it is necessary:
​​1) that the pledge results from a written deed;
2) that the pledge has been notified to the debtor of the pledged credit, or that it has been accepted by him in writing with a certain date.
The credit pledge does not preclude the possibility of configuring the same as an irregular pledge.
In the irregular pledge, unlike the ordinary pledge, the asset pledged as collateral passes into the property of the creditor (in the case of the bank) at the same time as the pledge is established, with the creditor’s obligation to return any excess, upon maturity of the obligation .
The rule relating to the irregular nature of the pledge and art. 1851 cc ,. which establishes that if deposits of money, goods or securities for which the bank has the right to dispose of them are pledged to guarantee one or more credits, the bank must return only the part exceeding the amount of the guaranteed credit.
The advantage of the irregular pledge is that the property passes to the creditor immediately, at the same time as the pledge is established.
Moreover, the irregularly pledged assets are insensitive to foreclosures, seizures or bankruptcy proceedings (and consequent bankruptcy revocatory actions) relating to the subject granting the guarantee, as they are no longer owned by the debtor-guarantor.
It is understood that particular attention will be paid to the drafting of the writing of the irregular pledge, which must provide for a transfer of ownership of the assets to the bank, as a specific guarantee of the loan, in order to avoid possible risks of dispute and invalidation of the operation.
(*) Nazione Verde Srl
