The supplementary procedural capacity of the bankrupt: an analysis of Order no. 30732 of 2025

When a business or an individual is declared bankrupt (now referred to as judicial liquidation), the management of assets and procedural representation generally pass into the hands of the bankruptcy trustee. However, what happens if the trustee decides not to take action or remains inert in a legal proceeding involving the debtor? Does the latter definitively lose every right to defend themselves? The Court of Cassation answers this complex question with Order no. 30732 of November 21, 2025, offering an important clarification on the so-called "supplementary" procedural capacity of the bankrupt.

The principle of supplementary procedural capacity

The general rule provides that the bankrupt loses the capacity to stand in court for matters concerning assets included in the bankruptcy, as established by Article 43 of the Bankruptcy Law. However, an exception exists, developed by case law in harmony with Article 24 of the Constitution, which protects the right to a defense: supplementary capacity. This allows the bankrupt to intervene or propose actions if the trustee's inertia risks definitively prejudicing their rights. But caution is required, as this "substitution" is not automatic and encounters very precise limits, as highlighted in the case involving Mr. I. (O. G.) against G., which concluded with the dismissal of the appeal against the Court of Appeal of Ancona.

The ruling of the Court of Cassation

In matters of bankruptcy, the so-called "supplementary" procedural capacity of the bankrupt exists only where the inertia of the trustee, according to an assessment reserved for the trial judge, is not the result of a conscious choice by the bodies of the procedure (as occurs when the trustee assumes the status of a party to the proceedings, even if in default), unlike the tax sector where, due to the specialty and peculiarity of the tax obligation, even the mere inertia of the bankruptcy trustee—determined by the failure to challenge the tax assessment—is relevant, regardless of the awareness and intent behind it.

The Supreme Court, with this important ruling, clarifies that the trustee's inertia must not be confused with a strategic and conscious choice. If the trustee deliberately decides not to appear or not to appeal a judgment, assessing that the action is disadvantageous or excessively burdensome for the body of creditors, the bankrupt cannot substitute them. The "relevant" inertia for the purposes of supplementary capacity is only that which is unintentional or due to a total lack of interest by the bodies of the procedure.

Differences between the ordinary and tax sectors

The tax authorities follow their own rules. In the field of tax law, the Court of Cassation confirms a more flexible orientation that favors the taxpayer. Let us look at the main differences highlighted by the judges of legitimacy:

• Ordinary Civil Sector: The supplementary capacity of the bankrupt arises only if the trustee's inertia is absolute and is not the result of a conscious choice by the procedure. If the trustee evaluates and decides not to act (even by remaining in default), the bankrupt is bound by that choice and cannot act autonomously.
• Tax Sector: In this sector, the mere inertia of the trustee is relevant (for example, the failure to challenge a notice of assessment), regardless of whether it is a conscious choice or not. The bankrupt therefore retains broader standing to act to prevent the tax assessment from becoming final, with financial and personal repercussions that could burden them even after the closure of the bankruptcy.

Conclusions

Order no. 30732/2025 reaffirms the importance of a delicate balance between the protection of creditors, managed by the bankruptcy bodies, and the bankrupt's right to a defense. For professionals in the sector and for debtors, understanding this distinction is fundamental: while in ordinary civil matters the path to personal defense is narrow and subordinate to a real omission not evaluated by the trustee, in the tax field, the doors to defense remain more easily open for the taxpayer subject to insolvency proceedings.