There has been much mention in the press in recent times about the amount of allegedly incorrect or fraudulent claims made by employers under the Government’s Coronavirus Job Retention Scheme (“CJRS”) (furlough scheme).

The Court of Cassation recently delivered an important decision regarding the accounting and tax treatment of debt restructuring operations performed by way of a debt-equity swap. Although the decision has the merit of being clear, its effective consequences are that tax will remain a key consideration for deciding whether to perform such operation. One may wonder whether that is sensible at a time when company groups may have to envisage such operations to save related entities from bankruptcy.

Debt waiver - Basic principles

The re-introduction of Crown preference and the resulting change in the order of priority of creditors on insolvency was announced as part of the Autumn budget in 2018, way before anyone had heard of coronavirus or COVID-19, and was originally due to come into force on 6 April 2020. It was delayed until 1 December 2020 in terms of the 2020 budget which was presented to Parliament on 11 March 2020, the same day as the World Health Organization declared the outbreak of COVID-19 a pandemic.

Secured lenders across the UK are unhappy with the government’s decision to push through a new law which could partly or fully wipe out their security in favour of HMRC debts in a liquidation or administration. In this article,  Tim Symes, a partner in our Insolvency and Commercial Litigation teams, considers the return of HMRC’s Crown preference.

Status as of 3/11 11:40 am CET               

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The past year has seen some important judgments and hearings (with judgment awaited at the time of writing) on several subjects, some of which may shape the future of UK litigation for years to come. Litigants and litigators have also spent a good part of the year getting used to a new way of conducting litigation—remotely and fully electronically. Starting with contract law, while there has been little by way of Supreme Court guidance on the subject, the lower courts continue to issue interesting judgments.

As part of the legislative changes brought about by the Finance Act 2020, the Treasury drafted the Insolvency Act 1986 (HMRC Debts: Priority on Insolvency) Regulations 2020 (the Regulations) and laid these before parliament on 14 September 2020. View a copy of the regulations.

１. はじめに

新型コロナウイルスの蔓延により企業を取り巻く環境は急速に変化しているところ、不採算部門からの撤退等再編の圧力は強まっており、M&Aを検討する企業は多くなっています。

M&Aや組織再編等を行うに当たっては、課税上のインパクトを検討する必要があり、資産・事業・株式等の譲渡によるのか合併や分割といった組織再編によるのか等、どのような取引形態を採れば課税上有利であるのかの検討が必要になります。その際には、適格の要件の充足、欠損金の引継ぎの可否等を検討します。

しかし、厳密な計画を経て、また場合によっては課税当局への相談も経て、税法上の適格要件、未処理欠損金の引継ぎ要件等を充足していることを確認した上で組織再編行為を行っても、その後の税務調査において、適格・非適格の別や欠損金の引継ぎが否認され、課税されることがあり得ます。

その際の課税根拠となるのが、世にいう伝家の宝刀である行為計算否認規定です。

今回は、組織再編行為に係る行為計算否認規定である法人税法132条の２について解説します。

2. 法人税法132条の2とは？

（1）導入経緯

Australia’s ageing population has driven innovation in delivering housing solutions for retirees and elderly alike. As a nation of sports fanatics who also love nature and green open spaces, it is no surprise that there has been a steadily increasing trend to co-locate retirement living with recreational facilities such as golf courses, bowls clubs and other recreational clubs.

HopgoodGanim has been fortunate enough to have acted for a number of retirement village operators (scheme operators) and clubs with respect to co-location projects in Queensland.

On 11 September 2020, the Insolvency Act 1986 (HMRC Debts: Priority on Insolvency) Regulations 2020 were made. The Regulations will come into force on 1 December 2020.

The Regulations set out the debts due to HMRC that will have ‘secondary’ preferential status in insolvencies from 1 December 2020. They are debts in respect of PAYE income tax, employee NICs, construction industry scheme deductions and student loan repayments. VAT debts are to be treated in the same way, though are not covered by these Regulations.