近期，北京市税务局发布了《关于进一步推进破产便利化 优化营商环境的公告》（2020年第4号，下称“4号公告”）、上海市高级人民法院与上海市税务局印发《关于优化企业破产程序中涉税事项办理的实施意见》（沪高法〔2020〕222号，下称“222号文”），旨在明确破产程序中的涉税事项，充分发挥破产制度在规范市场主体退出方面的重要作用。

破产是解决企业产业深层次矛盾，优化资源配置，提升企业产业质效的重要法治途径。破产程序中涉税事项的处理是重要一环，妥善处理破产事宜无法忽视涉税问题。实践中，我们作为税务律师也经常能接到破产程序中涉税事项的咨询，部分案件中涉税事项甚至成为左右破产程序能否顺利推进的重要因素，其中不乏争议的问题，部分问题可以从两份文件中找到答案或启示，我们在此结合两份文件的亮点与重点，对于破产程序中的涉税相关事项做简要梳理，并探讨合理应对之策。

一 非正常户、发票问题的解决

This week’s TGIF considers an appeal to the Full Court of the Federal Court for the termination of a deed of company arrangement , in circumstances where the appellants argued that liquidation of the company would provide a better return to creditors.

Key takeaways

This week’s TGIF considers In the matter of Fellmane Pty Ltd (in liq)[2020] NSWSC 595, a recent decision in which the NSW Supreme Court declined to give directions approving a proposed transaction proposed by a liquidator of the trustee and the receiver of that trust which would have extinguished the trustee’s right of indemnity against the principal debtor.

Key takeaways

This week’s TGIF considers a recent decision in which the NSW Supreme Court appointed a receiver to a hospitality business, in lieu of a provisional liquidator, due to fears the COVID-19 pandemic would cause creditors to question insolvency.

Key takeaways

This week’s TGIF considers the decision in McCallum, in the Matter of Re Holdco Pty Ltd (Administrators Appointed)[2020] FCA 666, where the Court granted leave for administrators to sell assets in which third parties claimed ownership or security interests, after determining that those interests were adequately protected.

Key takeaways

As one element of a package of measures intended to assist UK businesses with coping with economic difficulties brought about by the coronavirus pandemic, the UK government will temporarily suspend wrongful trading laws. The proposal to temporarily suspend wrongful trading laws is set out in the Corporate Insolvency and Governance Bill (the ‘Bill’), which is currently going through the UK parliament’s legislative process and is expected to be passed into law imminently.

In an effort to alleviate the impact of COVID-19 on UK businesses and encourage the supply of essential goods and services during the pandemic, the UK Government announced plans earlier this year to temporarily suspend wrongful trading laws and to fast track proposed permanent reforms to the existing insolvency regime (these reforms were developed in 2016 and consulted on in 2018).

This week’s TGIF considers the decision of In the matter ofCohalan & Mitchell Roofing (in liquidation)[2020] VSC 222, where the Supreme Court of Victoria refused to grant an extension of time for filing voidable transaction proceedings.

Background

This week’s TGIF considers a recent case where the Federal Court ordered payments made while a DOCA was in force, to which the deed administrators were signatories, were recoverable as unfair preferences.

Key Takeaways

This week’s TGIF considers a recent decision of the NSW Supreme Court by which two DOCAs were terminated with the deed fund transferred to liquidators for the ultimate benefit of the secured creditor and, indirectly, the proponent of the deeds.

Key Takeaways