報載曾為全球第二大的加密貨幣交易所FTX於2022年11月聲請美國破產法第11章破產重組，其破產重組計畫終於在2024年10月獲得美國德拉瓦州破產法院法官核准。受益於加密貨幣價值的大幅提升及美國國稅局同意減少稅捐債權之數額，FTX的用戶可獲得以破產當時加密貨幣的美元計價之賠償，若以此計算，大部分的用戶均可取回全額賠償及部分利息。
雖然仍有用戶認為加密貨幣現在之價值遠高於FTX破產時的價值，若無法返還用戶原本持有之加密貨幣，根本不算是全額賠償。但無論如何，在破產程序中債權人能獲得全額賠償及部分利息，是相當少見的狀況。
■美為讓債務人重獲新生，對稅捐債權保障可有所退讓
This week’s TGIF examines a recent decision where the Federal Court considered when a proof of debt would be ‘admitted’ within the meaning of section 563B of the Corporations Act 2001 (Cth) and therefore attract the statutory entitlement to interest.
Key takeaways
In Harrington v Purdue Pharma,1 the United States Supreme Court held that so-called “non-consensual third-party releases” were not permitted in restructuring plans proposed under Chapter 11 of the US Bankruptcy Code. A “third-party release” arises where creditors are asked to vote on a restructuring plan or scheme which not only proposes to release the debtor company (i.e. the company that has petitioned for bankruptcy or is proposing the scheme) from all liability but to also release other third parties from any associated liability.
Introduction
Section 216 Insolvency Act 1986 provides that a person who has been a director of a company at any time in the 12 months before it goes into insolvent liquidation is prohibited for five years from being a director of, or directly or indirectly being concerned in or taking part in, the promotion, formation or management of a company with the same or similar name to the liquidated company (a “prohibited name”). Section 217 imposes personal liability on a director for debts incurred by a company which acts in breach of s 216.
The common law of assignments for benefit of creditors (“ABC”) has been around for centuries.
ABC is a business debtor’s voluntary liquidation tool—typically utilized in cooperation with a major secured creditor.
Historically, ABCs are attractive to debtors and creditors alike as an efficient, mostly out-of-court tool for maximizing the liquidation value of a business—for the benefit of creditors.
The decision handed down in Re A Company [2024] EWHC 2656 (Ch) has provided new insight on what constitutes "genuine and serious" cross-claim for the purposes of securing an injunction to restrain presentation of a winding up petition.
Background
This article explains why the purchase of a shell company should be avoided today and even more so in the future under the new law, and that the formation of a new company is preferable when setting up a business (start-up).
At the end of this article, the possible effects of the revision of the law on legitimate transactions with company shares will also be discussed.
Seeking sound legal advice is therefore worthwhile both when founding a new company and when taking over an operating company.
An involuntary bankruptcy can be a powerful tool in a creditor's arsenal. Involuntary bankruptcies are rarely filed, however, because of the significant risk of liability for the petitioning creditor if the case is dismissed. A creditor considering filing an involuntary bankruptcy must understand the requirements for filing involuntary bankruptcy cases, which are strictly construed and applied, and be mindful of the associated risks.
Tanner De Witt acted for Chan Ho Yin (also known as Michael Chan) of Kroll (HK) Ltd and Elaine Hanrahan, the Joint Liquidators of Bull’s-Eye Limited (in Liquidation) (“BEL”) which was wound up in the BVI on 15 January 2024. BEL is a company connected to Hua Han Health Industry Holdings Limited (formerly listed on Main Board of the HKEx, stock code 587) (“Hua Han”). Michael Chan is also a one of the joint and several liquidators of Hua Han. BEL held roughly 30% shares in Hua Han and its sole shareholders and directors were the founders of Hua Han.