Last day 27 2.009 March was approved on Real Decreto-ley 3/2009 of urgent measures in tax, financial and insolvency, carrying out a partial reform legislation insolvency proceedings valid.
The reform aims primarily to respond to the crisis of the global economic and the impact it is having on the Spanish economy.
With this Royal Decree-Law is intended to mitigate the effects of the crisis, providing, among other things, the refinancing of companies that are experiencing financial difficulties, increase legal certainty for refinancing operations and encourage that you can reach agreements between the debtor and creditors enabling business continuity.
In order to examine this reform and analyze other aspects of the current bankruptcy laws that are recurrently affecting customers in the daily lives of their trade relations, DIG ADVOCATS Briefing on the following issues were discussed was held.
The communication of the Credits by the Creditors in the bankruptcy proceedings. Deadlines and consequences of your late communication.
- Communication deadline: 1 month ad (General Rule).
- If late communication: subordinated loan.
Credit amount communication and modification or qualification by the Bankruptcy Administration: No personal notification obligation Creditor (before last reform itself).
Trade relations with companies insolvent. Positioning to the contractual obligations
General rule: Continuity of contracts:
- Contract remains in force and obligation to comply with contractual obligations (including discount policies, credits promoter, ..).
- Services performed post-contest will be "claims against the estate" and therefore substantial possibilities for recovery.
contractual clauses forecast terminate the contract in the event of insolvencyNo efficacy.
- Exceptions: Contract Agency; Mandate contract; Mercantile Commission contract; Insurance contract (some cases) and also if the competition starts liquidation phase; Government contracts and are of an administrative nature.
- In any case:
- If permanent contract: at any time with notice.
- If leasing work: at any time by indemnifying the contractor.
Differences according to type of Contract:
- Unilateral contracts (Loan Mandate): Insolvency Debt
- Bilateral contract (with reciprocal obligations) (Credit, Purchase, supply, works):
- If the creditor fulfilled all its contractual obligations pre-contest: bankruptcy debt.
- If post-contest Creditor has outstanding contractual obligations to fulfill:
- If the debtor default pre-contest: bankruptcy debt.
- If I breach debtor post-contest: credit against the mass (with ample opportunities collection).
- Judge possible contract resolution by interest contest. Right to compensation for damages.
- Unnerve possibility Eviction Action pending or resolved Rehabilitation Contract Lease sentence if before launch and is paid to the Lessor (once).
- Rehabilitation possibility of procurement of goods with deferred price whose decision is produced in 3 months prior to the bankruptcy declaration, upon payment delays.
- Possibility of Rehabilitation Credit (clauses to avoid automatic maturity of loans) which occurred early maturity in 3 months before the declaration of insolvency and must be paid delays. Not possible if pre-contest has claimed payment judicially.
Events of default and possible resolution of the Contract:
- Hereinafter tract (leasing, renting, supply, works): the creditor can ask for a default resolution (severe) pre or post bankruptcy.
- Pre-bankruptcy: Ordinary Debt
- Post-bankruptcy: Credit against mass (with ample opportunities collection).
- (Even if bilateral) single tract (loan): the creditor can only ask for post-bankruptcy if noncompliance resolution.
- Possibility that the judge determine breached contract term interest insolvent by competition. Benefits payable by the mass.
Several issues of interest
- Buying property off plan with outstanding payments: Obligation to continue making payments even if works stopped.
- Doctrine of frustration of expectations
- If the insolvent liquidation request could seek the termination of the contract.
- Reintegration Action: Transactions in previous years 2 the declaration of insolvency, sufficing injury to the body of creditors.
- If fraud. 4 years term.
- Mortgage in favor of third party creditor debtIf 2 years have elapsed since the signing of the mortgage until the bankruptcy declaration and who gives the mortgage is subsequently declared bankrupt the beneficiary of the guarantee is a clear risk of losing the collateral.
- Related Parties credits (Partners (10%), and Group Administrators): Will subordinated claims and therefore the last to be entitled to recover their loans.
- : Non-competition contract repeatedly post risk of being branded as "subordinated loan" even if credit against the estate.
- Credits "crusaders"
- General rule: Forbidden setoff between creditor and debtor.
- Exception: If concurred requirements for compensation before the contest.
- sears Business Contest:
- Possibility requirement to pay the bondsman without waiting for the outcome of the contest (even if they had received the benefit of surety).
- If the guarantor pays creditor becomes insolvent. If subordinated loan will be linked.
- Repossessions Companies received from bankrupt eventually incur:
- General rule: they are attacked those made in previous years via 2 reintegration action. It requires only undermine the active mass, not bad faith; And if they are not overdue debt by not admit evidence against.
- Reform March 2009: Open the door that can be accommodated between the assumptions of the "refinancing agreements".
- Direct Action (1597 Civil Code): Yes possible pre-bankruptcy (just Burofax) and non-cancellable.
VAT recovery by creditors. Time limits and procedures
The 37 / 1992 Law, Tax Value Added provides for the possibility of recovering tax payments, pending collection, passed on to an entity which subsequently has been declared bankrupt, by applying a method of modifying the Base taxable.
This is a procedure optional or voluntary, by which modifies, diminishing the taxable amount of the transaction and therefore should proceed to rectify the fees passed on in it.
- The recipient of the taxable transaction has not made the payment of fees passed on.
- After the accrual of the operation, auto insolvency of the debtor is issued.
- Excepted from this possibility certain types of loans: secured; derivatives linked entities or persons, ...
- Transactions whose tax base is intended to rectify must have been billed and recorded in the register of invoices issued.
- The creditor taxpayer will be obliged to issue and send to the addressee of the operations a new invoice rectifying the fee.
- Deduction of the amount of VAT whose impact has been rectified in the reverse-charge period (1 year term).
- Written notice of the modification of the BI to the AEAT Delegation
- The recipient of corrective invoices must communicate this to the Administration of the AEAT, and regularize the share of self-assessment. Failure to comply with this requirement shall not prevent the modification of the tax base by the creditor.
- To encourage the modification of the tax base: A month since the last publication of the declaration of insolvency.
- To issue corrective invoice: Four years had elapsed from the time the tax was incurred.
- To lessen the amount of VAT autoliquidación: ONE YEAR.
- Communication AEAT for modification: One month from the date of issuance of the corrected invoice.
Communication to the AEAT
- shall state that the amendment does not refer to secured loans, ...
- It must be accompanied by the following documentation:
- copy of the corrective invoices.
- copy of the judicial order of declaration of insolvency of the recipient of the operation or certification of the Mercantile Registry accrediting that one.
Special causes upward revision of BI:
- Unusually, shall be required the taxpayer to change again upwards the taxable amount of the transaction by issuing a corrected invoice in which the quota from is passed on only when: the end of the competition and the filing of the actions agreed for certain causes.
- If partial payments have occurred prior to the modification of the taxable be understood that both a part of the consideration as proportionally corresponding VAT included in this amount.
New legal framework for operations refinancing and restructuring
debt by the bankrupt.
Refinancing agreements "Pre-Bankruptcy:
Concept Refinancing Agreement:
- significant expansion of credit available or modification of their obligations.
- Either by the extension of its maturity, either by the establishment of other contracted to replace those.
- Such arrangements shall respond, in any case, to a viability plan that will allow the continuation of the activity of the debtor in the short and medium term.
- Refinancers delivered not need the "new" money.
- "Significant". Extension
- Viability Plan short and medium term (undefined concept medium term. In accounting terms Short / Long differ by 1 year term).
Requirements that are not subject to subsequent termination:
- 3 / 5 party liability endorsement.
- Report of Independent Expert appointed by the registrar.
- It is formalized in a public document.
- Not necessary 3 / 5 be refinanced liability.
- practical problem: Designates Auditor and report thereof to the end of the process, after Viability Plan and Negotiation Creditor.
- If the company concerned has finally contest, the "Refinancing Agreement" is attackable only by Administrators.
- proposal for agreement:
- Current state of insolvency
- initiated negotiations to obtain acceptances for a proposed agreement
- to inform the Court within the common term for requesting tender.
- The deadline to urge in his case the contest is extended (2 + + 3 1). Altog 6 months.
Other amendments to the insolvency regime of special importance for Creditors
- Abbreviated procedure to 10 million liability.
- Creating Public Registry of Resolutions (in the future) to publish all resolutions insolvency.
- Companies in bankruptcy only publication in the Official Gazette (free)
- Guarantees agreed by the debtor-bankrupt by public law claims for Social Security and become unassailable.
About the Author:
Marcos Jiménez de Parga