YEAR 2023 No 3

ISSN 2182-9845

Intangibility of tax credits and alternatives to the partial void and to the limited effectiveness theses of the restructuring plan

José Gonçalves Machado


Court confirmation; restructuring plan; partial void and limited effectiveness theses.


In this paper one asks whether courts are allowed to confirm a restructuring plan, in the context of the PER, by using the partial void or the limited effectiveness theses, in order to not break the intangibility of tax credits rule or, mutatis mutandis, other credit rights that, by imperative law, cannot be modified. Looking at the foundations of the restructuring plan, and paying some attention to other foreign law solutions, one suggests three alternatives to the aforementioned theses: the first two allow parties to express their consent or to modify the restructuring plan, without breaking the intangibility of tax credits rule without their consent. The third one consists of adopting a restrictive interpretation of that rule.