Foreclosure of a current account jointly with the debtor by the Revenue Agency

 

A current account with the extent to which it can be attached by the Revenue Agency, considering that the sums deposited are all paid by the debtor?

 

The current legislation allows the Revenue-Collection Agency to proceed autonomously, ordering the bank without having to go to court, to expropriate the balance of the current account until the fulfillment of the claimed claim.

This possibility, however, lapses in the case of a joint account. In fact, the joint account is part of the notion of an undivided common good, whose expropriation is governed by the general rules of the code of civil procedure.

The law prohibits, in this case, the attachment by extrajudicial means, that is, with the order given directly to the bank or to the Post Office to withdraw the availability up to the amount of the credit activated, without going to the court. Only after the division of the common good, that is of the deposited bank account money, is it possible to assign to the distraining creditor what is due to him.

Therefore, the Revenue-Collection Agency must proceed according to the rules of the Civil Procedure Code, valid in the attachment to third parties: that is, with a summons to a court hearing.

At the hearing, the bank will have to participate. Then, it will follow the order of the magistrate that arranges the assignment of the sums attached. During the time elapsing from the notification of the attachment to the court hearing, the debtor’s current account sums are substantially “blocked” pending the hearing itself.

We can therefore conclude that in the case of a joint account, the Revenue-Collection Agency, can not seize the entire credit balance of the current account up to the capacity of the loan (ex Article 72 bis of Presidential Decree 602/1973), because this could be resolved expropriate sums belonging to the other non-debtor co-owner. The proceeding creditor must therefore be content with 50% of the available liquidity, unless he demonstrates to the judge, with a detailed examination of the chronological extract of the transactions carried out over time on the joint account, that the sums deposited are exclusively attributable to the debtor subject to executive action.

Naturally, even the non-debtor joint account holder can object to the conventional allocation of 50% of the available liquidity, at the hearing or by appealing to the execution judge, to show that the origin of the balance is to be shared between the two joint holders. non-equal measure.

Taking also into account that it is not enough to pay a sum in the current account in order to object to the exclusive attribution of the credit to the account holder who makes the payment: according to Article 1298 of the Civil Code, the presumption of equality of the shares of each of the joint holders a current account can be won not with the mere demonstration of having had the availability of the money entered into the account, but with the clear demonstration that the title of acquisition of that money made the recipient of the same, exclusively, the only subject that then he poured it into the joint account.

 

 

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