w or re lls .ne t.a u 2012/13 GUIDE TO PERSONAL INSOLVENCY PLAIN TALK. STRAIGHT ANSWERS. FAST RESULTS. Editor Chris Cook, Partner Worrells Brisbane DISCLAIMER The enclosed information is of necessity a brief overview and it is not intended that readers should rely wholly on the information contained herein. No warranty express or implied is given in respect of the information provided and accordingly no responsibility is taken by Worrells or any member of the firm for any loss resulting from any error or omission within this brochure. Liability limited by a scheme approved under Professional Standards Legislation. 1 2 3 PERSONAL INSOLVENCY13 5 PHASES OF FAILURE 14 BANKRUPTCY18 DIVISIBLE PROPERTY IN BANKRUPTCY 21 BANKRUPTCY AND THE FAMILY HOME 26 GETTING OUT OF BANKRUPTCY 29 INCOME CONTRIBUTIONS IN BANKRUPTCY 30 VOID TRANSACTIONS IN BANKRUPTCY 32 PREFERENCES IN BANKRUPTCY 36 VOIDING SUPERANNUATION CONTRIBUTIONS 38 PART X PERSONAL INSOLVENCY AGREEMENTS 45 SECTION 73 PROPOSALS 47 REVESTING OF PROPERTY 49 DISCHARGE & ANNULMENT 50 RELATED TOPICS55 PROOFS OF DEBT AND SECURED CREDITORS 56 PUBLIC EXAMINATIONS 57 Meetings of Creditors 59 Dividends62 CGT And Insolvency 69 GST AND INSOLVENCY 72 WORRELLS ARTICLES79 THE TAXMAN COMETH 80 ASSET PROTECTION STRUCTURES EXPOSED UNDER PPS ACT 81 DEALING WITH REAL PROPERTY AFTER DISCHARGE 83 WHAT HAPPENS WHEN A MEMBER OF A SELF MANAGED SUPER FUND BECOMES BANKRUPT? 84 A TALE OF THREE PROPERTIES 85 GLOSSARY87 A WORD FROM IVOR Our Guide to Personal Insolvency inevitably focuses largely on personal bankruptcies, so it’s worthwhile knowing that the term “bankruptcy” derives from two Latin words, bancus meaning table, and ruptus meaning broken. Before the advent of shops, when merchants and traders carried on business from markets, they set up their businesses on tables or benches in the market place, to display their wares. In those early days, if a merchant could not pay his debts, the practice was for his table to be broken so as to signify that he was out of business. Whether the merchant broke his own table or whether his creditors took a hand in the process is not clear; probably both happened. In any event bancus ruptus or broken table has evolved into our word bankruptcy. Along with the evolution of the term bankruptcy, both the law relating to personal insolvency and the community’s perception of the bankruptcy process have evolved. Today we have a very detailed and codified framework of Bankruptcy law, drawn from both legislation and from Court judgments. Bankruptcy law aims to combine equity for and between creditors, with the need to provide a fresh financial start for debtors who could not otherwise survive. To a very large degree the law succeeds in its aims. Another major evolution relates to the incredible amount of information that the ordinary person can get from the web on almost any subject, including bankruptcy. But not all of the information focuses on what most people really want to know, not all of it is expressed in everyday English, and not all of it aims to correct the many misconceptions which still abound about bankruptcy and its consequences for both debtors and creditors. Worrells 2012/13 Guide to Personal Insolvency is an up to date, one volume, easy to understand explanation of the law and practice of personal insolvency in Australia and it draws together in a form convenient to all, the combined experience of Worrells 16 partners. For our professional colleagues the Guide will provide a quick reference explanation of the relevant law which can be used in their office, or passed onto clients. For those facing the uncertainty of bankruptcy, or who are subject to one of the other forms of personal insolvency, often one of the most difficult issues is uncertainty about what will happen. Using its simple English question and answer format the Guide shines a light on and explains the uncertainties which most affect debtors. We have also included in our Guide a selection of interesting and illuminating articles taken from our popular monthly Plain Talk e-Update newsletter. Bankruptcy is not about punishing business owners for making mistakes. And it’s not about penalising people for taken risks, because risk taking is the very essence of our market economy. It’s about removing impossible financial obligations in a way which is transparent and fair to all. Of course each insolvency is unique on some way, and although our Guide is accurate at the date of publication, both the law and the practice of insolvency continue to evolve. That is why we encourage all readers to treat the information in the Guide as a statement of general principles and always to seek qualified professional advice, or to contact a Worrells partner, before committing to any course of action. Ivor Worrell Coordinating Partner “bankruptcy is not about punishing business owners for making mistakes.” WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU The essence of Worrells and our contemporary culture is now illustrated through our brand. We strived for an evolution toward a modern and fresh brand - one that reflects who we are. We hope you like it as much as we do. 3 WORRELLS PARTNERS It’s our people that deliver “Plain talk, straight answers and fast results.” WorRells are a team of full time specialists. Solvency Management, Restructure or Insolvency Administration can be a period of great stress. An experienced and specialist team can ease the process, ensuring a fair outcome for all parties concerned. At Worrells we’re specialists Solvency Accounting is all we do. • 16 Partners, • 16 Registered & Official Liquidators, • 13 Registered Trustees, • 3 Certified Fraud examiners, • 5 east coast major metro locations, … we can have experienced staff at any location, quickly. 4 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU Quick decisive action by a highly skilled team acting in a caring, respectful and fair manner does make all the difference. Established over 38 years ago, Worrells draws upon over 200 years of experience. Using proprietary technology, our team have successfully completed over 25,000 assignments. Specialist accounting services, delivered by dedicated fulltime specialists, on time, on budget every time. IVOR WORRELL brisbane FCA Official Liquidator Registered Trustee Member IPA Forensic Accountant Justice of the Peace 07 3225 4310 [email protected] Ivor Worrell is a Registered Trustee in Bankruptcy and Official Liquidator. Ivor is a leading Queensland insolvency practitioner and in a career spanning 38 years he has developed experience in Corporate and Personal Insolvency, Receivership and Litigation Support. Raj Khatri brisbane Morgan Lane brisbane MICHAEL GRIFFIN brisbane FCA Official Liquidator Registered Trustee Member IPA Commissioner of Declarations CA CPA (Fellow) Official Liquidator Registered Trustee Member IPA Justice of the Peace CA Registered Liquidator Official Liquidator Registered Trustee Certified Fraud Examiner Member IPA Commissioner of Declarations 07 3225 4320 [email protected] Raj Khatri joined the firm in 1986 rising to become a Partner in 1994. His area of specialty is Corporate Insolvency and has over 26 years experience in the field. Raj is a fellow of the Australian Institute of Chartered Accountants, an associate of the New Zealand Society of Accountants and the Institute of Corporate Managers, Secretaries and Administrators. 07 3225 4330 [email protected] Morgan Lane joined the firm in 1992 and became a full partner in 1996. His wealth of experience gained in both the private and public sectors adds further depth to our insolvency division. Morgan is a Fellow of CPA Australia accredited as a Specialist in Insolvency & Reconstruction, an Associate of the Institute of Chartered Accountants and The Institute of Corporate Manager, Secretaries and Administrators. 07 3225 4360 [email protected] Michael is a Registered Liquidator, Official Liquidator and a Registered Trustee in Bankruptcy. Michael is also a Member of the Institute of Chartered Accountants and the Insolvency Practitioners Association. Michael’s experience includes all forms of personal and corporate insolvency matters. 5 WORRELLS PARTNERS MICHAEL PELDAN brisbane CHRIS COOK brisbane ADAM WARD IPSWICH FCA Registered Liquidator Official Liquidator Registered Trustee Certified Fraud Examiner Member IPA Commissioner of Declarations CPA CA Registered Liquidator Official Liquidator Member IPA Commissioner of Declarations CPA Registered Liquidator Official Liquidator Registered Trustee Member IPA Commissioner of Declarations 07 3225 4386 [email protected] 07 3280 6201 [email protected] Chris is an Official Liquidator, Chartered Accountant, Certified Practising Accountant and a member of the Insolvency Practitioners Association of Australia. Adam Ward joined the firm in 2001 and became a partner in 2011. Adam is a Registered Liquidator, Official Liquidator and is a member of both CPA Australia and the Insolvency Practitioners Association. 07 3225 4370 [email protected] Michael joined the firm as a graduate in 1991 after completing studies as a mature-aged student, and became a full partner in July 2000. Michael’s experience includes all aspects of Corporate and Personal Insolvency and Financial Investigation. Michael is also engaged in Fraud Awareness Management and Education and is one of the firm’s Certified Fraud Examiners. 6 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU Chris joined the firm in February 1999 and has considerable experience in both the Corporate and Personal Insolvency Fields. Chris is the partner and heads a team that specialises in Corporate and Personal Insolvency. His experience includes all forms of Corporate and Personal insolvency matters. Adam is the Partner that leads a team at our Worrells Ipswich Office. JASON BETTLES GOLD COAST Paul Nogueira sunshine coast JOHN CUNNINGHAM sunshine coast CA Official Liquidator Registered Trustee Member IPA Commissioner of Declarations CPA CA Registered Liquidator Official Liquidator Registered Trustee Member IPA Commissioner of Declarations CPA Liquidator Registered Trustee 07 5553 3405 [email protected] 07 5459 1001 [email protected] 07 5459 1002 [email protected] Jason is an Official Liquidator, Registered Liquidator, Registered Bankruptcy Trustee, Chartered Accountant and a member of the Insolvency Practitioners Association of Australia. He has worked exclusively in the field of insolvency since 1995, managing the Gold Coast Insolvency Division of a second tier accounting firm for two years before joining us in October 2001. Jason has experience in all forms of corporate and personal insolvency matters. He has provided recommendations on the most appropriate solutions to deal with insolvency issues to all types of parties. Jason’s knowledge and experience allows him to consider informal arrangements to solve insolvency problems, as well as the formal insolvency administrations. Paul joined Worrells in 1999 after completing his degree with the Queensland University of Technology. He was appointed a Partner in 2006 and opened the Worrells Sunshine Coast office in 2007. Paul is experienced in all forms of Corporate and Personal insolvency administrations over various industries and specialises in small to medium business turnaround management and solvency solutions. Paul adheres to the firm’s “Plain Talk, Straight Answers, Fast Results” approach and is available to provide no obligation advice to any party that may find themselves faced with solvency problems. John joined Worrells as a partner in 2012. He is one of ten partners in Queensland and 16 nationally. John has over 23 years experience in the insolvency field having commenced with the then Official Receivers Office in Melbourne in 1989. John joined forces with Paul Nogueira as part of the Ramsay Clout merger with Worrells in 2012. Whilst John has taken appointments in a wide variety of areas and industries he has developed a particular expertise in the areas of building, retail and hospitality. 7 WORRELLS PARTNERS Nicholas Malanos sydney Christopher Darin sydney Stephen Hundy CANBERRA CPA Registered Liquidator Official Liquidator Registered Trustee Certified Fraud Examiner Member IPA CA Registered Liquidator Official Liquidator Justice of the Peace CA Registered Liquidator Official Liquidator Registered Trustee Member IPA 02 9249 1214 [email protected] 02 9249 1209 [email protected] Nick has in excess of 27 years experience in all aspects of corporate insolvency. He has particular expertise in the areas of Voluntary Administration and Deeds of Company Arrangement which has now enabled numerous businesses to successfully continue on over the years. 8 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU Chris is a Registered Liquidator, Official Liquidator and associate member of the Institute of Chartered Accountants in Australia. Chris joined the firm as partner of the Sydney firm in July 2008 having been in practice on his own account since 1996. Chris’ experience includes all aspects of corporate insolvency and adopts a consultative approach when exploring all financial avenues available to a distressed company. Chris also undertakes corporate advocacy appointments, assisting directors and companies in dealing with their debtors, creditors and other insolvency practitioners. 02 6287 6000 [email protected] Stephen Hundy joined Worrells Solvency & Forensic Accountants in 2011 as a partner and leads our Canberra office. Stephen has worked exclusively in the insolvency industry since 1995 and is able to provide assistance in all areas of personal and corporate insolvency. Stephen specialises in the provision of clear practical commercial advice on a wide range of business issues for individuals and small to medium enterprises. He adopts a hands-on approach being involved in all aspects of an appointment. In addition, Stephen also has experience in preparing fraud and financial investigation reports, undertaking financial viability reviews and has assisted with shareholder and partnership disputes. paul burness melbourne matthew jess melbourne Con Kokkinos melbourne CPA Official Liquidator Registered Liquidator Registered Trustee Certified Fraud Examiner Member IPA CPA Registered Liquidator Official Liquidator Registered Trustee Member IPA CPA Registered Liquidator Official Liquidator 03 9613 5510 [email protected] Paul Burness is a Certified Practising Accountant, an Official Liquidator and a Registered Trustee in Bankruptcy. He is also a member of the Insolvency Practitioners Association of Australia. Paul has considerable experience in all forms of Corporate and Personal Insolvency and Reconstruction, specialising in insolvency since graduating. Paul is the managing partner of the Melbourne firm. 03 9613 5502 [email protected] 03 9613 5513 [email protected] Matthew is an Official Liquidator and Certified Practising Accountant, who has considerable experience in the Insolvency, Commercial Accounting and Corporate Finance fields. Matthew’s experience includes due diligence investigations, sale of business transactions, corporate reconstructions and financial turnarounds. Con Kokkinos joined the Melbourne office on a full time basis in April 2008. Con has been a Liquidator since November 2001 and is a member of CPA Australia. Con brings with him over 15 years of insolvency experience with an emphasis in all aspects of corporate insolvency. Matthew has also completed the Advanced Insolvency Course with the Insolvency Practitioners Association of Australia. 9 LATEST PERSONAL INSOLVENCY STATISTICS Insolvency figures as released by THE Insolvency AND Trustee Service Australia (ITSA). Release No: 127 Date issued: 10 July 2012 ADMINISTRATIONS UNDER THE BANKRUPTCY ACT 1966 STATISTICS (PROVISIONAL*) JULY 2011 - JUNE 2012 Bankruptcies (Parts IV and XI) NSW Debt Agreements (Part IX) Personal Insolvency Agreements (Part X) Total insolvency activity 10/11 11/12 % Change 10/11 11/12 % Change 10/11 11/12 % Change 10/11 11/12 % Change 8127 7623 -6.20% 2661 3093 16.23% 126 115 -8.73% 10914 10831 -0.76% ACT 186 171 -8.06% 98 146 48.98% 1 4 300.00% 285 321 12.63% VIC 4521 4253 -5.93% 1733 1757 1.38% 106 97 -8.49% 6360 6107 -3.98% QLD 6145 6253 1.76% 2244 2476 10.34% 74 79 6.76% 8463 8808 4.08% 128.57% 1948 1891 -2.93% 160 138 -13.75% SA 1603 1517 -5.36% 338 358 5.92% 7 16 NT 106 80 -24.53% 54 56 3.70% 0 2 WA 1701 1569 -7.76% 625 769 23.04% 55 60 9.09% 2381 2398 0.71% TAS 713 697 -2.24% 301 292 -2.99% 6 5 -16.67% 1020 994 -2.55% Total 23102 22163 -4.06% 8054 8947 11.09% 375 378 0.80% 31531 31488 -0.14% Note 1: All the above figures refer to personal administrators under the Bankruptcy Act only (and not corporate insolvency). Note 2:All the above figures refer to personal administrations under the Bankruptcy Act only (and not corporate insolvency). Note 3:There were 5,058 (22.8%) business related bankruptcies and 17,105 (77.2%) non-business bankruptcies during the financial year. A business related bankruptcy is defined as being one in which an individual’s bankruptcy is directly related to his or her proprietary interest in a business. *Verified annual figures are published in the ANNUAL REPORT ON THE OPERATION OF THE BANKRUPTCY ACT 1966 for each financial year, released by the office of the Inspector-General in Bankruptcy, Insolvency and Trustee Service, Australia, 42 Macquarie St, BARTON ACT 2600. Telephone (02) 6270 3400 Fax (02) 6270 3413 These figures, together with some historical data, may be found on ITSA’s homepage on the Internet at www.itsa.gov.au 10 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU Bankruptcy 2010/11 2011/12 NSW 8127 7623 ACT 186 171 VIC 4521 4253 QLD 6145 6253 SA 1603 1517 NT 106 80 WA 1701 1569 TAS 713 697 Personal Insolvency Agreements (Part X) NSW 2010/11 2011/12 126 115 ACT 1 4 VIC 106 97 QLD 74 79 SA 7 16 NT 0 2 WA 55 60 TAS 6 5 Total Insolvency Activity NSW ACT BANKruptcy 2010/11 10000 2010/11 2011/12 10914 10831 285 321 VIC 6360 6107 QLD 8463 8808 SA 1948 1891 NT 160 138 WA 2381 2398 TAS 1020 994 BANKruptcy 2011/12 8000 6000 4000 2000 0 NSW ACT VIC QLD SA NT WA TAS 150 ERSONAL INSOLVENCY P AGREEMENTS (PART X) 2010/11 120 ERSONAL INSOLVENCY P AGREEMENTS (PART X) 2011/12 90 60 30 0 NSW ACT VIC QLD SA NT WA TAS 12000 T OTAL INSOLVENCY ACTIVITY 2010/11 10000 T OTAL INSOLVENCY ACTIVITY 2011/12 8000 6000 4000 2000 0 NSW ACT VIC QLD SA NT WA TAS 11 PERSONAL INSOLVENCY NUMBERS REMAIN CONSISTENT, THAT’S WHY AN UNDERSTANDING IS THIS AREA IS VITAL. WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU 1 PERSONAL INSOLVENCY 5 PHASES OF FAILURE 14 BANKRUPTCY18 DIVISIBLE PROPERTY IN BANKRUPTCY 21 BANKRUPTCY AND THE FAMILY HOME 26 GETTING OUT OF BANKRUPTCY 29 INCOME CONTRIBUTIONS IN BANKRUPTCY 30 VOID TRANSACTIONS IN BANKRUPTCY 32 PREFERENCES IN BANKRUPTCY 36 VOIDING SUPERANNUATION CONTRIBUTIONS 38 PART X PERSONAL INSOLVENCY AGREEMENTS 45 SECTION 73 PROPOSALS 47 REVESTING OF PROPERTY 49 DISCHARGE & ANNULMENT 50 13 1 5 PHASES OF FAILURE 5 PHASES OF FAILURE Every year thousands of businesses open their doors and commence trading. Many of these businesses will fail in the first few years, some will fail in the years after that, and only a few will prosper and survive in the long term. This is by no means a new phenomenon and the statistics change very little from year to year. Based on our past experience dealing with business failures, we have prepared the following information which identifies what we call the ‘Five Phases to Failure’ and the elements which are likely to be found at each phase. No two business failures are identical so not all of the elements will be found in every case. But when you see enough failures patterns start to appear. We believe that the ‘Five Phases to Failure’ can provide useful benchmarks for struggling businesses. Used as an early warning system, they may save some businesses from insolvency as business owners will identify the deterioration of their financial position early enough to take proactive action. A failing business may display characteristics from more than one phase at one time and they may spend a little or a lot of time in each phase. These are not definite steps that can be predicted with any certainty to appear and last for definite periods. They are more like road signs that indicate the direction of a business failure journey. 1. CONFIDENT PHASE (THE RISE) The first phase occurs with the opening of the business and during the early periods of trading. Business owners are full of confidence when they start trading. They have high expectations about how the business will perform and exude enthusiasm, and this will blind some to seemingly obvious pitfalls. Many people starting businesses will have no business experience and little or no knowledge of budgeting, accounting or financial management. They may not seek advice in the early stages. Yet they are confident of success. Turnover builds during these early days as customers take advantage of opening specials. New suppliers give generous discounts and extended terms to secure the new customer and the owners will probably sign credit applications and guarantees. Financial information is prepared, if not analysed in any detail, and expansion plans are made to fulfil the expected continued growth. This is the time when new motor vehicles are leased, new premises are considered and financial budgeting does not seem important. Owners believe that the business will continue to grow. The commitments entered into during this phase may have an effect on the business and the owner’s personal life, in the future. (v)Directors willing to sign personal obligations and guarantees. But many businesses are seriously under-capitalised when they start, surviving on supplier credit and overdrafts. When budgets are prepared (usually for banks and investors) they are not done in consultation with accountants and are typically overly optimistic and incomplete. There will be no provision for slow payments by debtors, cost overruns, bad debts or losses in the first few months. Profit is not of major concern as none was expected in the first few periods, but the losses are not covered by capital, they are covered by debt. Growth of turnover is considered all important but the cost of making these sales, especially by discounting, is not fully understood. Some business owners realise that this period will end and seek advice from their accountants. Their accountants help them prepare for the inevitable start of phase two by keeping a realistic view of the level of sales, ensuring that overheads are kept under control and that sufficient capital is available when required. Phase two is where the future of many businesses is decided. During this phase we can expect to see: (i)Good trading with a reasonable demand for the product or services offered. (ii)Increasing turnover. New business is won at the expense of more established competitors, mainly by discounting. (iii)Suppliers offering discounts and credit to win supply contracts. (iv)The business products and the staff are innovative and ahead of competitors. 14 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU (vi)Financial statements and budgets are prepared, although not necessarily thoroughly analysed. (vii)New premises and/or plant are brought online. (viii)E xpansion and trading are often being funded on finance, because of limited capital. (ix)Growth of turnover is considered all important but the cost of making these sales is not fully understood. (x)Regular drawings by owners. (xi)Great plans for future expansion being confidently discussed. (xii)Staff bonuses and incentives are offered. 2. CONSOLIDATION PHASE (THE PLATEAU) Eventually the honeymoon period ends and things settle down. Sales now have to be won from established competitors that are already adjusting to the new player in the market and heavy discounting is no longer an affordable option. The effects of competition begin to be felt, as existing players bring their operations up to date and start actively competing for business. The owners recognise that to succeed it is not simply good enough to be new and energetic, it is also necessary to be disciplined, knowledgeable and pragmatic. Financiers, customers and suppliers need to be constantly reassured about the strengths of the business, its products, service and finances. PERSONAL INSOLVENCY Suppliers will end their discounts and extended terms and now require payment. Some customers, having tried the new business and taken advantage of the discounts, will go back to their regular suppliers so sales will start to drop. The first question is, now that sales have stabilized or have declined from the initial period, is whether the business is profitable on the bottom line? Many businesses still have a gross profit, but cannot meet overheads. This affects under-capitalised business very quickly. The second question is whether profits are sufficient to repay any losses incurred in the opening phase of the business, as these losses are currently supported by suppliers and the bank. To counter this problem, some people will make sales on extended terms or to anyone that will place an order, resulting in slow payments and bad debts. The difference between sales, profits and cash flow needs to be recognised. At this point some businesses adapt to the new conditions and remain profitable and some do not. The ones that do not will find new business harder to win. Financiers and investors will pay closer attention to the declining results and banks will notice the ever increasing overdraft balance. Financial information may be produced, but the owners may not have the skills or knowledge to interpret and evolve a survival strategy. Importantly many of them will still not get advice, and when they do, some advisors will not want to deliver bad news. Left alone, profits will reduce or disappear and cash flow will tighten. Confidence and enthusiasm will start to decline. Many businesses will stay in this phase for long periods, struggling to survive. Those that don’t adapt to the new conditions can expect to see: (i)Sales getting harder to win and increased competition. (ii)Turnover becoming stagnant or reducing for two or more consecutive periods. (iii) Current asset ratio weakening. (iv)Closer attention from the bank and investors. (v)Margins being squeezed as suppliers end their early discounts and prices have to be dropped to get sales. (vi)Credit being harder to obtain from suppliers who require guarantees from directors. (vii)An intermittent inability to meet all commitments - the overdraft balance increases. (viii)Grand plans quietly downgraded to more realistic levels or are dropped entirely. (ix)Uncertainty about the business’ ability to trade profitably in the future. (x)Preparation of financial statements becoming less regular and less rigorous. (xi)Directors and owners becoming less enthusiastic. (xii)Long periods being spent on managing cash flow rather than managing profit. Business owners who understand the trading results or seek advice from their accountants or trade groups will build on their foundations of budgets and capital and survive. But those who cannot or will not rethink and adapt their business model eventually advance to the third phase. 5 PHASES OF FAILURE 1 3. DEBT PHASE (THE DECLINE) Tough trading conditions have led to real financial problems. A steady decline will continue until the business closes or sufficient bottom line profits are earned to cover past losses. The limited initial working capital would have been used up and cash flow is now entirely supplied by creditors, including the Australian Taxation Office (ATO) and banks. The injection of further capital without making the business profitable just delays the inevitable failure. Cash flow problems cause a series of other problems. The lack of working capital and continued losses mean that some debts are not being paid. Some creditors will now not supply further credit and only trade on a cash on delivery (COD) basis, plus they will require partial payments of old debt with payments for new orders. This makes cash flow even worse. Getting sufficient stock becomes a problem causing customers to shop elsewhere - compounding the problem with lower sales. Business owners may use creative accounting when dealing with financiers and investors. Preparation of financial statements becomes intermittent and advice from accountants and bankers is generally ignored. All planning is done on a day to day survival basis. Some owners are solely concerned with getting enough money to pay the more urgent debt, borrowing from anyone that will lend or from family members, or selling or mortgaging houses to obtain cash injections. The business is technically insolvent and insolvent trading is now an issue for company directors. 15 1 5 PHASES OF FAILURE The business must be made profitable before the problem of past losses can be solved. Profits may enable a company to propose a deed of company arrangement, and a sole practitioner to propose a personal insolvency agreement. These will provide some time for past debts to be paid without the threat of winding up or bankruptcy. Importantly, people take the stress home causing problems in their family life, particularly when they have borrowed money from family members. Businesses owners are now risking more than just money and assets. A business in the debt phase is usually characterised by: (i)Creative accounting being used for reporting to banks and investors. (ii)Spending is reduced on noncore activities i.e. marketing. (iii)Further and greater use of ATO funds and failure to remit superannuation monies. (iv)Further slippage in turnover, margins and profits. (v)Quality customers are lost as they find more stable suppliers. (vi)A need for longer term ‘arrangements’ with some creditors. (vii)Some suppliers only supplying on COD basis. (viii)Planning is done on a day by day survival basis. (ix)Accountants consulted but advice generally ignored. (x)Internal systems and controls begin to break down. (xi)Management’s main preoccupation is demands from creditors. (xii)Insolvent trading is now an issue for company directors. Some people will now admit that there is a problem and will seek help. This is a big step towards survival, but no guarantee that the business will survive. Sometimes advisors can only control the crash as the business fails and attempt to reduce the damage. But some will not seek advice and they will end up in the fourth phase. 16 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU 4. DENIAL PHASE Ultimately businesses are run by people and now human nature plays a major role in their future. Some people will reach the denial phase. They will continue to trade, justifying their actions in the belief that a solution is just around the corner, or that next month’s trading will be better. No amount of financial statements or cash flow projections will make them change their minds. Their accountants may convince them to talk to advisors, but they leave the meeting adamant that any problems will work themselves out. Other people see the situation differently. Employees begin to look for more secure employment. Financiers and investors make demands to try to reduce their exposure. Creditors start issuing proceedings and the remaining customers look for a more reliable supplier. Almost no financial statements are prepared and bad results are not believed. Owners do not know the extent of outstanding debts, and tax and superannuation has not been paid for some months. Cash flow is entirely dependent upon debtors making payments as all other sources of money, both personal and borrowed, are exhausted. Blame is laid on everyone else (accountants, bankers and solicitors included). The only thing that advisors can do is keep putting the facts and figures to the business owners and ensure that their own professional obligations are fulfilled, and hope that the business owner will start to believe that there is a problem. Some will come to that conclusion and appoint the necessary people to handle the business. Some will not. For them, this phase generally ends when director penalty notices are received from the ATO or legal proceedings are served by creditors. This is reflected in: (i)A belief that problems that exist can be overcome relatively simply. Wishful thinking is the order of the day. (ii)Greater losses are incurred but the true extent is not acknowledged or known. (iii)Management’s time allocated to non-core activities. (iv)Bank and investor relations make demands to reduce their exposure. (v)Management shows signs of complacency or arrogance. (vi)Blame for the situation is laid on everyone else. (vii)Preparation of any financial statements is all but abandoned. (viii)Demands from creditors are ignored and proceedings are issued. (ix)A refusal to recognise the existence of bad debts and redundant stock. (x)It becomes difficult to get supply on credit or at a reasonable cost. (xi)Management becomes unavailable to make decisions, or if decisions are made, they are regularly countermanded. (xii)Current asset ratio likely to be less than 0.5 This is where many business owners first seek advice from their accountants and solicitors, and when the only realistic advice is to see an insolvency practitioner. 5. THE COLLAPSE Denial is superseded by reality. Reality may come quickly with the appointment of a liquidator or bankruptcy trustee, or come slowly as all sources of money are extinguished, remaining staff leave and the doors eventually close. All working capital is long gone and owners start to look to protect their personal positions through asset protection strategies set up at the commencement of trading. Goodwill is non-existent, the landlord is changing the locks and the banks have cut off the overdraft. Creditor support has ended and customers have no faith in the business. Owners start to discover the extent of the debts and the number of personal guarantees they signed during the early days. Liquidation and bankruptcy are terms now used in daily conversation. PERSONAL INSOLVENCY 1 In this phase we expect to see: (i)All working capital has been exhausted. (ii)Non-adherence to any payment arrangements with the ATO. (iii)Directors and proprietors look to protecting themselves. (iv)Goodwill is lost. (v)Bank and investors are not interested in further extensions. (vi)Insufficient funds are available to pay wages, rent, or chattel leases. (x)Sole proprietors become bankrupt. (xi)Directors are subject to demands from guaranteed creditors and insolvent trading claims from liquidators, resulting in bankruptcy. (xii)Family situations reach a crisis stage, often leading to separation and divorce. CONCLUSION How do business owners get a business off this road to failure? Sometimes there are no solutions. A business that is not profitable may survive on injections of funds alone, but eventually those funds have to run out. Some businesses simply do not have a large enough profitable market or an appropriately formed business model to survive, regardless of any actions taken or capital invested. Sometimes the business just will not work despite the effort and money invested into it. (vii)The ATO issues directors penalty notices. (viii)Administrators appointed and are expected to work miracles with virtually no working capital or reliable information. Business decisions are made by people and to start the recovery process these people have to admit that there is a problem, make some tough decisions and be willing to take corrective action. Some people just will not do it in time to make a difference, and time is usually critical. Those who do make the tough decisions will generally achieve a much better outcome for themselves and their families. 5 PHASES OF FAILURE This is where some people finally realise that they need help, but often it is too late to save the business. The best that accountants or insolvency practitioners may be able to do is control the financial crash. By this time there is little likelihood of saving the business, even under a deed of company arrangement or personal insolvency agreement. It may be that this course of action will enable the debtor to avoid bankruptcy. The first step is to get an experienced accountant to prepare accurate and up to date financial statements. Using these statements, management should work with the accountant in the preparation of a realistic business plan and meaningful budgets. It is imperative for management to be fully informed and to look at the position objectively. It may be necessary to involve an insolvency practitioner, especially if help is desirable with managing creditors, or if it is clear that the business’ difficulties are more than a short term cash flow problem. (ix)Creditors fail to accept the director’s proposal or trading on and the business is closed. ay...’ W e h T y ‘B y bankruptc y if t n e id s y truste e e Bankruptc s who de cid r o t la u g e r but it’s the of fence s... rranted. a w is n io t u prose c whe the r a 17 1 BANKRUPTCY BANKRUPTCY WHAT IS BANKRUPTCY? Bankruptcy is a legal process where a trustee is appointed to administer an insolvent person’s affairs in order to provide a fair distribution of that person’s assets to their creditors. Bankruptcy is a legitimate and just way for a debtor to solve their debt problems, and is one way for creditors to take action against someone for unpaid debts. WHY CHOOSE BANKRUPTCY? The Bankruptcy Act has been developed for the protection of both debtors (the bankrupt) and creditors. The debtor is protected from being pursued by his or her creditors and, with limited exceptions, is released from his or her debts at the end of the bankruptcy. It provides a debtor with a fresh start. Bankruptcy protects the interests of creditors by having an independent, qualified professional control and investigate the affairs of the bankrupt and oversee the collection and distribution of the bankrupt’s assets. HOW DOES A PERSON BECOME BANKRUPT? CAN A DEBTOR BE MADE BANKRUPT IF THEIR ASSETS EXCEED THEIR DEBTS? Yes. A person is legally insolvent if they are unable to pay their debts as and when they fall due. If a debtor owns sufficient assets to cover his debts but is unable to liquidate them (sell them or borrow against them) to actually pay the debts, they may be bankrupted. Technically a debtor is legally insolvent if they do not satisfy a bankruptcy notice, regardless of whether they can pay the debt or not. But, the Official Receiver has the discretion not to accept a debtor’s petition if they believe that the debtor is solvent and could satisfy their debts. A person may become bankrupt in one of two ways. WHAT IS A STATEMENT OF AFFAIRS? They may bankrupt themselves by filing a debtor’s petition and a statement of affairs with the Official Receiver. This process is referred to as lodging a ‘debtor’s petition’. A person is made bankrupt when the Official Receiver processes the debtor’s petition and issues an estate number. A statement of affairs is a document that must be completed by all bankrupts that sets out their personal and financial information. This is an important document for two reasons: A person may also be made bankrupt by the Federal Court on the application of one of their creditors through a ‘creditor’s petition’. In most instances, a creditor must have obtained a judgment on their debt and have served a ‘bankruptcy notice’ on the debtor. If the debtor does not pay the debt before the expiry of the bankruptcy notice, the creditor may file a creditor’s petition with the Federal Court seeking a sequestration order bankrupting the debtor. 18 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU 1.It is the financial disclosure of a bankrupt’s assets and debts and this information is used by the trustee in conducting the estate. 2.The date of lodgement of the statement of affairs will determine when the bankruptcy ends (the date of discharge). HOW DOES BANKRUPTCY AFFECT SOMEONE? A person is an ‘undischarged bankrupt’ from the date of bankruptcy until they are either discharged or annulled. During this period they: (i)Can’t act as a company officer; (ii)Can’t trade under a registered business name without advising people that they are bankrupt (they can trade under their own name); (iii)Must make all of their divisible assets available to the trustee; (iv)Can’t incur credit over an indexed amount without advising the lender that they are bankrupt; (v)Must surrender their passport(s) and will have limitations on overseas travel; and (vi)Must make all books and records and financial statements available, including those of associated entities such as companies and trusts. CAN A BANKRUPT CONTINUE TO EARN INCOME? Yes, a bankrupt may continue to earn income and is encouraged to do so. If income earned during the bankruptcy exceeds certain indexed threshold limits, the bankrupt will have to pay a contribution from that income to the estate. Income under these provisions includes personal income, certain benefits provided by third parties and income from superannuation or trusts. Income is then reduced by the income tax payable on the income, legitimate business expenses (where appropriate) and certain child support payments. The liability to pay this contribution to the estate survives beyond the discharge of the bankruptcy and can be enforced by the trustee. The trustee may garnishee the bankrupt’s wages or use the supervised account regime to collect contributions. The bankrupt may be re-bankrupted by the trustee for non-payment of contributions. PERSONAL INSOLVENCY 1 All of a bankrupt’s divisible property is controlled by their trustee. This includes all property the bankrupt owned when he or she was bankrupted and all property received after the date of bankruptcy but before discharge. This latter property is called after-acquired property. Some property is not divisible. Divisible property (i.e. property that can be divided amongst creditors) does not include the following: (i)Necessary clothing and household items; (ii)Tools of trade to an indexed amount; (iii)A motor vehicle to an indexed amount; (iv)Life assurance or endowment policies (subject to some limitations); (v)Certain damages and compensation payments; (vi)Sentimental property (as defined in the Bankruptcy Act); (vii)Superannuation payments (subject to certain limitations). CAN THE TRUSTEE RECOVER PROPERTY THAT WAS SOLD BEFORE BANKRUPTCY? Maybe. The trustee will look at any sales or transfers of property that occurred within the five years before the bankruptcy. If these transactions appear improper, undervalued, or to have had the purpose of attempting to defeat creditors, that property or its value may be recovered from the recipient. The trustee may also recover monies from creditors who may have received payment of their debts in the six months before the bankruptcy. Such payments are commonly referred to as preferential or preference payments. HOW DOES BANKRUPTCY AFFECT JOINTLY OWNED REAL PROPERTY? The trustee of a bankrupt estate may have his or her name placed on the title deed in place of the bankrupt. This is called entering transmission. The trustee will usually invite the co-owner of the property to either buy the bankrupt’s interest or join in selling the property. If the co-owner will not cooperate with the trustee or they cannot agree on a satisfactory arrangement, the trustee can force the sale of joint property. CAN BANKRUPTCY AFFECT A FAMILY TRUST? A trustee may recover any property that a bankrupt has given or sold to a trust at less than its true value. The trustee will also receive any monies that may be owed to the bankrupt by a trust in the form of a loan or outstanding entitlements, and receive any distribution due to the bankrupt. Usually the trustee of a discretionary trust will not make distributions to someone while they are bankrupt. Trustees of unit trusts will not have that discretion. WHAT IS THE EFFECT ON CREDITORS? When a person is made bankrupt, their creditors exchange the right to enforce their claims for a right to prove in the bankrupt estate for a dividend. All creditors with claims at the date of bankruptcy can prove for a dividend. There are few exceptions to this rule that are not covered here. WHAT THE RIGHTS OF SECURED CREDITORS AFFECTED? The bankruptcy does not affect the rights of secured creditors in relation to their security. They can enforce their charges or securities and prove for any deficiency in the estate. There are special provisions on how secured creditors may prove for shortfalls before the secured assets have been sold. WHAT ARE NON-PROVABLE DEBTS? BANKRUPTCY HOW DOES BANKRUPTCY AFFECT PROPERTY? Certain debts cannot be claimed in the bankruptcy. Non-provable debts cannot be proved and will not be released at the end of the bankruptcy. These debts include: (a)Some portion of a HECS debt; (b)Court imposed fines; and (c)The remainder of maintenance agreements under the Family Law Act; Full details of provable debts are set out in section 82 of the Bankruptcy Act. CAN THE TRUSTEE PAY DIVIDENDS? Yes. Ultimately the role of the trustee is the distribution of the bankrupt’s assets to the creditors. Obviously this can only occur if the bankrupt has assets. Section 109 of the Bankruptcy Act sets out the order of priorities under which dividends must be paid. Some payments and certain debts need to be paid before dividends are paid to unsecured creditors. WHEN DOES BANKRUPTCY END? The bankruptcy period automatically ends (the bankrupt is discharged) three years after the date on which the bankrupt files his or her statement of affairs. But the conduct of the estate may continue for some time thereafter. The period of bankruptcy may be extended for up to five years. This is done when the trustee lodges an objection to discharge. This may happen if the bankrupt fails to cooperate with the trustee, leaves Australia without permission, manages a company without the leave of the court, or engages in misleading conduct in relation to an amount over an indexed sum. 19 BANKRUPTCY 1 WHAT IS AN ANNULMENT OF THE BANKRUPTCY? WHAT ARE THE TRUSTEE’S POWERS? An annulment is the cancellation of the bankruptcy and reinstatement of the affairs of the debtor as if no bankruptcy had occurred. An annulment can be obtained: The trustee has the power to sell any divisible asset of the bankrupt, investigate the affairs of the bankrupt and examine the bankrupt and others under oath, conduct and sell any business of the bankrupt, admit debts and distribute dividends. The trustee is empowered to exercise all of the rights and powers that the bankrupt would have had if they had not become bankrupt, plus has recovery powers that the bankrupt would not have. (a)By an order of the court on the basis that the bankruptcy should not have occurred; (b)By the bankrupt’s debts and the costs of the administration being paid in full; or (c)By a proposal under section 73 being accepted by creditors. WHO LOOKS AFTER A BANKRUPT ESTATE? When a person is made bankrupt, a trustee in bankruptcy is appointed to administer the bankrupt’s estate. The trustee is an appropriately qualified and registered specialist accountant who is either an officer of the Federal Court (a registered trustee) or a public servant (the Official Receiver). In summary, the trustee will: (a)Find and protect the assets of the bankrupt; (b)Realise those assets; (c)Conduct investigations into the financial affairs of the bankrupt and any suspicious transactions; (d)Make appropriate recoveries; (e)Report to creditors; (f)Report offences to ITSA; and (g)Distribute surplus funds to creditors. A debtor presenting a debtor’s petition or a creditor filing a creditor’s petition can obtain a consent from a trustee to become the trustee of the estate. If no consent is obtained, the Official Receiver will be the trustee. ay...’ W e h T y ‘B 20 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU CAN A TRUSTEE BE CHANGED? Yes. The Bankruptcy Act allows the trustee to be changed. There are two ways of doing this. 1.The creditors may change the trustee by voting for a change. This may occur at any time and for any reason. 2.The court may replace a trustee if it is convinced that it is proper to do so. This usually only happens if the trustee has done something wrong, and the court forms the opinion that a new trustee needs to take over the estate. A replacement trustee is also appointed if the current trustee dies or retires. GOVERNMENT CHARGES (ARC AND IRC) Bankrupt estates attract a government charge. This charge is payable at the rate of 4.4% of gross monies received into the estate, less payments to secured creditors, trade on costs and other minor amounts. Monies held by trustees for an estate must also be held in interest bearing accounts with any interest earned being payable to the government. h charge’ wit is ‘d s t p u r se a bank ally Don’t confu charge usu is D . y c t p the bankru the end of re late s to d n a s r a e y te r thre e happens af lly, but the a n o s r e p t p the bankru control ove r sse ts can a f o n io t a lis ion and rea t a ic if t n e id discharge. r e t f a s r a for many ye e c la p e k a t PERSONAL INSOLVENCY 1 DIVISIBLE PROPERTY IN BANKRUPTCY DIVISIBLE PROPERTY IN BANKRUPTCY INTRODUCTION In simple terms, trustees of bankrupt estates sell the assets of the bankrupt and distribute the proceeds to the bankrupt’s creditors. This guide looks at which of the bankrupt’s assets can be sold by the trustee. It does not look at assets that may be recovered from other parties through other provisions related to void transactions under the Bankruptcy Act. Not all of the bankrupt’s assets are available to the trustee. The Bankruptcy Act defines “divisible” assets (those assets that are available to the trustee) from “non-divisible” assets (those assets that are not available to the trustee). Understandably, whether an asset is divisible or not is sometimes a contested issue. It is also important to determine what is property of the bankrupt and what is not. Items held on trust or loaned to the bankrupt, or simply do not belong to the bankrupt, do not vest in the trustee. They are not the bankrupt’s assets and therefore cannot be divisible. VESTING OF THE “PROPERTY OF THE BANKRUPT” Vesting Property Any property of the bankrupt automatically vests in the trustee on the commencement of the bankruptcy. The trustee isn’t required to take any action for this ‘vesting’ to occur. Where applicable, legal title to some property may have to be registered in the trustee’s name, but equitable title will automatically vest (e.g. real property). Assets acquired by the bankrupt after the bankruptcy commenced and before discharge may also vest in the trustee when they are acquired. These are called ‘after-acquired property’. BANKRUPTCY ACT 1966 - SECTION 58 Vesting of property upon bankruptcy-general rule (1)Subject to this Act, where a debtor becomes a bankrupt: (a)the property of the bankrupt, not being after-acquired property, vests forthwith in the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section 156A, in that registered trustee; and (b)after-acquired property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, in the Official Trustee or, if a registered trustee is the trustee of the estate of the bankrupt, in that registered trustee. After-acquired property includes any property acquired by or devolved on the bankrupt on or after the date of the bankruptcy and before discharge, being property that is also divisible amongst their creditors. Non-divisible after-acquired property does not vest in the trustee. One of the purposes of section 58 is to provide immediate protection to assets from individual creditors who are attempting to recover their debts by enforcements against assets. As the bankrupt is no longer the legal owner of the property, nothing can be given away to creditors or taken from the estate under enforcement actions. Once the asset has vested in the trustee, only the trustee may deal with that asset. This allows for an orderly and fair distribution of the bankrupt’s assets between the proper creditors. BANKRUPTCY ACT 1966 - SECTION 58 Vesting of property upon bankruptcy-general rule (3) Except as provided by this Act, after a debtor has become a bankrupt, it is not competent for a creditor: (a) to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or The two important factors are: (b) except with the leave of the Court and on such terms as the Court thinks fit, to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding. 1.The property must have been acquired during the term of the bankruptcy; and There are two exceptions that allow creditors to commence or continue action against property: 2.It would otherwise be classified as divisible property. 1.Secured creditors have a right to exercise their security over any asset covered by their security. Section 58 only provides protection to divisible assets that are not covered by a valid security. If existing owned property is not deemed as ‘divisible’ at the commencement of bankruptcy, it would not be divisible if acquired during bankruptcy. ‘After-acquired property’, in relation to a bankrupt, means property that is acquired by, or devolves on, the bankrupt on or after the date of the bankruptcy and is property that is divisible amongst the creditors of the bankrupt. 2.Creditors can exercise their rights against non-divisible property for debts under maintenance orders or agreements. Non-divisible property does not fall under the control or protection of the trustee as it does not vest in the trustee. 21 DIVISIBLE PROPERTY IN BANKRUPTCY 1 BANKRUPTCY ACT 1966 - SECTION 58 BANKRUPTCY ACT 1966 - SECTION 58 Vesting of property upon bankruptcy-general rule Vesting of property upon bankruptcy-general rule (5) Nothing in this section affects the right of a secured creditor to realise or otherwise deal with his or her security. (2) Where a law of the Commonwealth or of a State or Territory of the Commonwealth requires the transmission of property to be registered and enables the trustee of the estate of a bankrupt to be registered as the owner of any such property that is part of the property of the bankrupt, that property, notwithstanding that it vests in equity in the trustee by virtue of this section, does not so vest at law until the requirements of that law have been complied with. (5A) Nothing in this section shall be taken to prevent a creditor from enforcing any remedy against a bankrupt, or against any property of a bankrupt that is not vested in the trustee of the bankrupt, in respect of any liability of the bankrupt under: (a) a maintenance agreement; or (b) a maintenance order; whether entered into or made, as the case may be, before or after the commencement of this subsection. All divisible property that is not secured to a particular creditor is solely under the control of the trustee. But what is and is not divisible property is not always straight forward. REGISTRATION OF INTERESTS In some cases registration is necessary to record the vesting of the property in the trustee. This is usually the case with real property where the title of the property will have to be transferred to the trustee in order for the trustee to be able to legally deal with the property. This process is known as ‘entering transmission’ - transmitting legal ownership. The equitable interest will vest in the trustee, however the legal interest will need to be transferred. In the case of real property, usually the trustee will initially protect the estate’s interest by lodging a caveat on the title - vesting of the property provides a ‘caveatable’ interest. But the trustee will not be able to sign transfer documents until title to the property has been transferred into his or her name. NEW TRUSTEES Occasionally the trustee of the estate will change during the bankruptcy. How and why is not discussed here and is not important to the property. The remaining property in the estate automatically vests in the new or replacement trustee as soon as the change of trustee takes effect. The same transmission rules apply so the new trustee may have to enter transmission of relevant property into their name. BANKRUPTCY ACT 1966 - SECTION 132 Vesting and transfer of property (1) Subject to this section, and to section 158, where a trustee is appointed by the creditors, the property of the bankrupt passes to and vests in the trustee so appointed on the day on which the appointment takes effect. (2) Subject to this section, the property of the bankrupt passes from trustee to trustee and vests in the trustee for the time being during his or her continuance in office or, if the Official Trustee becomes the trustee, in the Official Trustee, without any conveyance, assignment or transfer. (3) Where a law of the Commonwealth or of a State or Territory of the Commonwealth requires the transmission of property to be registered, and enables the trustee to be registered as the owner of any such property that is part of the property of the bankrupt, that property, notwithstanding that it vests in equity in the trustee by virtue of this section, does not vest in the trustee at law until the requirements of that law have been complied with. Changes in trustees are not common, but the procedural mechanism is in place to allow a smooth transfer of the rights to property to any new trustee. WHAT IS DIVISIBLE PROPERTY? Section 58 does not define what is or is not divisible property, only that all divisible property vests in the trustee. It is easiest to think of divisible property as all of the property of the bankrupt and work backwards from there. The Bankruptcy Act has a wide definition of divisible property and broadly covers the following: (i)All property owned at the time of bankruptcy or acquired during the bankruptcy; (ii)Any rights or powers over property that existed at the date of bankruptcy or during the bankruptcy; (iii)Any rights to exercise powers over property; (iv)Any property that vests because an associated entity received the property as a result of personal services supplied by the bankrupt (section 139D); (v)Monies recovered from an associated entity due to an increase in the net worth of the entity as a result of personal services supplied by the bankrupt (section 139E). The relevant section lists what classes of assets are divisible amongst creditors: 22 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU PERSONAL INSOLVENCY 1 Property divisible among creditors (1) Subject to this Act: (a) all property that belonged to, or was vested in, a bankrupt at the commencement of the bankruptcy, or has been acquired or is acquired by him or her, or has devolved or devolves on him or her, after the commencement of the bankruptcy and before his or her discharge; and (b) the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his or her own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his or her discharge; and (c) property that is vested in the trustee of the bankrupt’s estate by or under an order under section 139D or 139DA; and (d) money that is paid to the trustee of the bankrupt’s estate under an order under section 139E or 139EA; and (e) money that is paid to the trustee of the bankrupt’s estate under an order under paragraph 128K(1)(b); and (f) money that is paid to the trustee of the bankrupt’s estate under a section 139ZQ notice that relates to a transaction that is void against the trustee under section 128C; and (g) money that is paid to the trustee of the bankrupt’s estate under an order under section 139ZU; is property divisible amongst the creditors of the bankrupt. is property divisible amongst the creditors of the bankrupt. The trustee will start with all of the property and will eliminate non-divisible assets from this list. NON-DIVISIBLE PROPERTY What is not divisible property is a more difficult area. The Bankruptcy Act provides that a number of types of property will not be divisible. Section 1162. of the Bankruptcy Act summarises what is not classified as property divisible amongst creditors. The list of what assets are non-divisible is extensive, but in most cases these assets will appear fairly rarely. A lot of them are not that common. Some of them on the other hand, are very common and are non-divisible as they are necessary for the bankrupt’s subsistence. These can be grouped roughly into the following 14 different areas: 1.Property held by the bankrupt in trust for another person, that is, property that is not owned by the bankrupt. 2.The bankrupt’s household property prescribed by regulation 6.03 or identified by a resolution passed by the creditors before the trustee realises the property. 3.Personal property that has sentimental value for the bankrupt and is identified by a special resolution passed by the creditors before the trustee realises the property. 4.The bankrupt’s property - tools of trade - that are for use by the bankrupt in earning income by personal exertion (subject to the value limit prescribed by the regulations). 5.A vehicle used by the bankrupt as a means of transport, (subject to the value limit prescribed by the regulations). 7.The interest of the bankrupt in a regulated superannuation fund or an approved deposit fund or an exempt public sector superannuation scheme or a payment to the bankrupt from such a fund received on or after the date of the bankruptcy, if the payment is not a pension within the meaning of the Superannuation Industry (Supervision) Act 1993 (certain conditions apply). DIVISIBLE PROPERTY IN BANKRUPTCY BANKRUPTCY ACT 1966 - SECTION 116 8.A payment to the bankrupt under a payment split under Part VIIIB of the Family Law Act 1975 where the eligible superannuation plan involved is a fund or scheme covered by the Act and the payment involved is not a pension within the meaning of the Superannuation Industry (Supervision) Act 1993. 9.The amount of money a bankrupt holds in an RSA or a payment to a bankrupt from an RSA received on or after the date of the bankruptcy, if the payment is not a pension or annuity within the meaning of the Retirement Savings Accounts Act 1997. 10.A payment to the bankrupt under a payment split under Part VIIIB of the Family Law Act 1975 where the eligible superannuation plan involved is an RSA; and the splittable payment involved is not a pension or annuity within the meaning of the Retirement Savings Accounts Act 1997. 11.Any right to recover damages or compensation for personal injury or wrong doing or in respect of the death of the spouse or member of family of the bankrupt. 6.Policies of life assurance or endowment assurance in respect of the life of the bankrupt or the spouse of the bankrupt whether the proceeds are received on or after the date of the bankruptcy. 23 DIVISIBLE PROPERTY IN BANKRUPTCY 1 12.Amounts paid under a scheme approved by the States Grants (Rural Reconstruction) Act 1971; the States Grants (Rural Adjustment) Act 1976 or approved by the States and Northern Territory Grants (Rural Adjustment) Act 1979; the States and Northern Territory Grants (Rural Adjustment) Act 1985; the States and Northern Territory Grants (Rural Adjustment) Act 1988; amounts paid to the bankrupt for re-establishment support under the Rural Adjustment Scheme within the meaning of the Rural Adjustment Act 1992; amounts paid to the bankrupt as a re-establishment grant under the farm help re-establishment grant scheme within the meaning of the Farm Household Support Act 1992; amounts paid to the bankrupt as a dairy exit payment within the meaning of the Farm Household Support Act 1992. EXEMPT ASSETS 13.Property that was funded either wholly or substantially, with protected money (what is protected money is limited as a number of nondivisible assets lose their protection when converted into cash, particularly before bankruptcy). SENTIMENTAL PROPERTY 14.Where, as at the time when the trustee realises particular property, the outlay in relation to the property is in part protected money, the trustee shall pay to the bankrupt so much of the proceeds of realising the property as can fairly be attributed to that protected money. Some otherwise divisible property is subject to statutory value limits and property with values under those limits is exempt or non-divisible to that extent. These limits change from time to time and current amounts are listed on our website on the Thresholds page. These limits are designed to allow the bankrupt to maintain some standard of living (the household property limitations), and maintain some employment (the tools of trade and motor vehicle limitations). These limits and the legislation dealing with exempt values are set out in the following regulations: BANKRUPTCY REGULATIONS 1996 6.03 Household property BANKRUPTCY REGULATIONS 1996 - 6.04 Property divisible among creditors - prescribed amounts What is sentimental property and whether it is exempt is regulated by the Bankruptcy Act. Sentimental property must be non-monetary, have real sentimental value to the bankrupt, and be an award for sporting, cultural, military or academic achievement. If it does not fall into these categories, it cannot be classified as sentimental and usually will be divisible. Creditors must also resolve that this property is sentimental property by special resolution at a meeting of creditors or a virtual meeting. If the creditors do not approve it as sentimental property, it is divisible to the estate. BANKRUPTCY REGULATIONS 1996 - 6.03A Personal property (1) For subparagraph 116 (2) (ba) (ii) of the Act, sporting, cultural, military or academic awards made to the bankrupt in recognition of his or her performance are personal property to which subsection 116 (1) of the Act does not extend. (2) Subregulation (1) does not apply to a monetary award. TIME LIMITS FOR REALISATION Two provisions limit the time available to trustees to realise property. REVESTING OF PROPERTY The first is the revesting provision under section 129AA of the Bankruptcy Act. Assets will revest in the bankrupt where trustees do not realise divisible property within the statutory time period. All types of divisible assets are able to be revested, with the exception of cash. BANKRUPTCY ACT 1966 - SECTION 129AA Time limit for realizing property (1) This section applies only to: (a) property (other than cash) that was disclosed in the bankrupt’s statement of affairs; and (b) after-acquired property (other than cash) that the bankrupt discloses in writing to the trustee within 14 days after the bankrupt becomes aware that the property devolved on, or was acquired by, the bankrupt. In this subsection, cash includes amounts standing to the credit of a bank account or similar account. In this subsection, cash includes amounts standing to the credit of a bank account or similar account. 24 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU PERSONAL INSOLVENCY 1 1.The asset was owned before the bankruptcy but was not disclosed in the bankrupt’s statement of affairs; or 2.The acquisition of after-acquired property is not notified to the trustee within 14 days of the bankrupt’s knowledge of its acquisition; or 3.It is cash. Otherwise property will revest six years after either the bankrupt is discharged or when the asset is disclosed to the trustee, whichever is later. BANKRUPTCY ACT 1966 - SECTION 129AA Time limit for realizing property 3) Initially, the revesting time for property is: (a) for property disclosed in the statement of affairs -the beginning of the day that is the sixth anniversary of the day on which the bankrupt is discharged from the bankruptcy; and (b) for after-acquired property that is disclosed before the bankrupt is discharged from the bankruptcy - the beginning of the day that is the sixth anniversary of the day on which the bankrupt is discharged; and (c) for after-acquired property that is disclosed after the bankrupt is discharged from the bankruptcy - the beginning of the day that is the sixth anniversary of the day on which the bankrupt disclosed the property to the trustee. When that six year time limit commences previously depended on when the estate commenced and in relation to transitional clauses. There were three possibilities for assets disclosed in the statement of affairs. The provisions were introduced in 2003 and the transitional clauses expired in 2009 (being six years after the introduction). That is, the earliest date that any property could have revested was 5 May 2009. This gave trustees six years after the introduction to the provision to sell any assets. Currently for estates that commenced after 5 May 2003 (which is the greater majority of current estates), the revesting date is six years after the date of discharge. Acquisition of after-acquired property must be notified to the trustee within 14 days of the bankrupt’s knowledge of the acquisition. If notification is not given within that period, the property will not be eligible to be revested. For property where proper notification is given, the revesting date will be six years after the date of discharge or date of notification, whichever is later. EXTENSION OF TIME The trustee is able to extend the revesting period for a further three years after the “current” revesting period ends or three years after some specified event. The Act does not limit the number of extension that may be made. Therefore, in theory, the trustee can keep extending the period three years at a time indefinitely. BANKRUPTCY ACT 1966 - SECTION 129AA DIVISIBLE PROPERTY IN BANKRUPTCY An asset will never revest to the bankrupt if: Time limit for realizing property (4) If the trustee, before the current revesting time, gives the bankrupt a written notice (an extension notice) stating that a later revesting time applies to particular property, then that later time becomes the revesting time for that property. (5) There is no limit on the number of extension notices that the trustee may give (either generally or in relation to particular property). (6) The time specified in an extension notice must be either: (a) a specified time that is not more than 3 years after the current revesting time; or (b) a time that is reckoned by reference to a specified event (for example, the death of a life tenant), but is not more than 3 years after the happening of that event. 20 YEAR LIMIT The second time limit is imposed by section 127 and relates to divisible property not caught under the revesting provisions - property that was not properly disclosed to the trustee. This provision gives the trustee 20 years from the date of bankruptcy to make a claim to and realise any property. BANKRUPTCY ACT 1966 - SECTION 127 Limitation of time for making claims by trustee etc. (1) After the expiration of 20 years from the date on which a person became a bankrupt, a claim shall not be made by the trustee in the bankruptcy to any property of the bankrupt, and that property shall, subject to the rights, if any, of a person other than the trustee in respect of the property, be deemed to be vested in the bankrupt, or a person claiming through or under him or her, as the case may be. 25 1 BANKRUPTCY AND THE FAMILY HOME BANKRUPTCY AND THE FAMILY HOME How the Bankruptcy Act applies to a bankrupt’s family home is often misunderstood. The loss of the bankrupt’s family home is usually felt more intensely than the loss of any other asset. Understandably, many bankrupts know that the loss of the home will disrupt the family unit, not only affecting the bankrupt but also their children and partners/spouses who may be solvent. Because of these factors, trustees in bankruptcy must approach the realisation of a bankrupt’s interest in a family home with some tact and understanding, while protecting the rights and interests of creditors. IS THE FAMILY HOME PROTECTED? No. The family home is not a protected asset under the Bankruptcy Act. If there is equity in the property after paying out any proper mortgage and selling costs, the trustee is obliged to realise the property. WHAT ABOUT JOINT OWNERSHIP? The realisation process is relatively straightforward when the bankrupt is the only owner of the home, or all of the owners are bankrupt. However, often the bankrupt and his or her non-bankrupt spouse will own the family home together as ‘joint tenants’. But even if the family home is jointly owned by the bankrupt and a solvent (non bankrupt) co-owner, the trustee can still insist on the bankrupt’s share of the equity being realised. The options available to achieve this are discussed below. WHAT HAPPENS TO JOINT TENANCIES ON THE BANKRUPTCY OF ONE OR MORE OWNERS? A joint tenancy is automatically severed upon the bankruptcy of any one of the joint tenants - at least as far as it relates to the ownership interest of the bankrupt. This occurs due to the ‘involuntary alienation’ or severing of the fundamental legal rights of the parties necessary to create a joint tenancy. This practice is long established having been mentioned in the 1862 case of Paten v Cribb. The trigger to this alienation of legal rights is the vesting of the property in the trustee and that occurs at the commencement of the bankruptcy. 26 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU After the severing of the joint tenancy, those interests in the property are held as a ‘tenants in common’. This is important if a bankrupt dies after their bankruptcy. If the joint tenancy had not been severed, the bankrupt’s share of the property (and the equity attached to that share) would automatically vest in the co-owner upon the death of the bankrupt, and the value would be lost to the estate. HOW IS THE EQUITY IN A PROPERTY DETERMINED? The trustee will have the property valued. Secured debts are deducted from that value and the bankrupt’s share of the equity is calculated by a simple equation. WHAT IF THERE IS NO EQUITY IN THE PROPERTY? Sometimes there is no equity in a property when it vests in the trustee, meaning that the debts secured against the property are greater than the current value of the property. In some cases the mortgagees will exercise their rights and sell the property. But sometimes the mortgages will take no action and the bankrupt and possibly other parties will continue to service that loan. It is also a fair consideration to predict that the value of the property may increase. The property vests in the trustee at the time of bankruptcy and remains vested even where there is no equity and even if the trustee takes no immediate action to sell the property. The property will remain vested in the trustee even after the bankrupt has been discharged from bankruptcy. The trustee will generally review the equity position of the property periodically. They are able to realise any equity generated after the date of bankruptcy. This is the case even if that equity has been generated by the continued payment of the mortgage by the bankrupt or the other owner. Mortgage payments attributed to the bankrupt’s share are deemed to be rental payments for the use and occupation of the property during that time. HOW ARE PROPERTIES REALISED? Where the trustee is the only owner, they can put the property for sale. Where there is a co-owner, the trustee will usually take the following steps: 1.Give the co-owner the opportunity to buy the estate’s interest in the property. 2.If that is not possible, see whether the co-owner will join with the trustee in cooperatively marketing the property on agreed terms. 3.If an agreement on selling the property cannot be reached, the trustee can ask the court to appoint a ‘statutory trustee for sale’ over the co-owner’s interest to force a sale of the property. The appointment of a statutory trustee compels the sale of the home, notwithstanding that the co-owner is solvent and has not contributed to the bankruptcy in any way. Although the court will often attempt to soften the effect of such an order by allowing the spouse time to relocate, but the ultimate result is that the property will be sold. PERSONAL INSOLVENCY 1 WHAT ABOUT GETTING VACANT POSSESSION? The sale process usually begins with the trustee ‘entering transmission’. This is the legal process to have the trustee’s name placed on the certificate of title in place of the bankrupt’s. This is necessary so that the trustee can execute a sale contract and transfer forms when selling the property. The trustee will normally be required to provide vacant possession when selling a property therefore it will be necessary for the bankrupt to vacate the property before settlement. The trustee usually does not expect a bankrupt to vacate the premises immediately upon bankruptcy and will, in normal circumstances, allow for a few weeks for the alternative arrangements to be made. Usually the trustee will only enter transmission if satisfied that there is equity in the property. If there is doubt about the final outcome, the trustee may initially lodge a caveat over the title to protect the estate’s interests for the short term, giving them some time to determine what to do with the property. WHAT ABOUT MORTGAGEES? The vast majority of family homes are subject to a mortgage. The mortgage may be enforced during the bankruptcy, possible even when the mortgage payments are up to date as the bankruptcy itself may constitute a default in the terms the mortgage. Although mortgagees have the power to sell the bankrupt’s home, in most cases they will leave the task to the trustee. WHAT IF THE BANKRUPT CAN CONTINUE WITH MORTGAGE PAYMENTS? If the bankrupt has the capacity to continue making mortgage payments, the mortgagee will usually not insist upon possession of the property, preferring to allow the loan repayments to continue. The trustee will have no objection to this, provided that the bankrupt arranges for the equity in the property to be paid to the estate. This type of arrangement benefits everyone. The bankrupt estate obtains the equity in the property, the mortgagee retains a performing loan and the bankrupt’s family avoids the sale of their home. However, the property can still be sold by the trustee even if the mortgage payments are kept up to date, and they will be able to benefit from the extra equity generated in the property because of these additional payments. In some cases the trustee may allow the bankrupt to stay in residence during the selling period provided the bankrupt assists that process, contributes a fair rent and maintains the property, and when the trustee is satisfied that the bankrupt will continue to cooperate. HOW ARE THE PROCEEDS OF SALE DISTRIBUTED? If the property is wholly owned by the bankrupt, the estate will receive the entire surplus of the sale after any mortgagee and selling costs are paid. If the property is co-owned, the trustee will share the surplus with the solvent owner on the basis of the legal entitlement as shown on the title deed. Although the title to a property may be held equally, occasions will arise where unequal contributions have been made towards the acquisition or development of the said property. This may lead to one party holding the property for the other party in a constructive or resultant trust and will potentially alter the distribution. The sharing of equity may also be altered under the doctrine of exoneration if loans secured on the property were used by one party and not the other. WHEN DOES THE DOCTRINE OF EXONERATION APPLY? The property may be encumbered by a mortgage that secures a loan to the sole benefit of one owner, even though all owners have agreed to the mortgage. The doctrine says that the person who received the benefit of the loan should have the first obligation to repay the loan - and the co-owner should only be considered a surety (guarantor) and their share should only be used to meet any shortfall. A simple example of the doctrine would be a family home worth $400,000 owned by the bankrupt and a solvent spouse. Prior to bankruptcy they agreed to the bank taking a mortgage over their property to support an advance of $150,000 to the bankrupt’s business. On a sale of the property $250,000 would be available for distribution to the owners ($400,000 sale price less the mortgage of $150,000). Because each owner had an equal share in the legal title to the property it might be thought that they should each receive $125,000. BANKRUPTCY AND THE FAMILY HOME WHAT IS ENTERING TRANSMISSION? However the doctrine of exoneration may require that the amount due under the mortgage should be deducted from the bankrupt’s equity so that the following equitable distribution would apply: Bankrupt’s share = $200,000 less $150,000 = $50,000 Spouse’s share = $200,000 The principle of the doctrine of exoneration is not applied without a full review by the trustee who must find compelling evidence that it should apply. IS THERE A TIMEFRAME FOR THE SALE OF THE PROPERTY? Trustees will generally sell property in a timely fashion. Section 129AA of the Bankruptcy Act requires trustees to realise property within a period ending six years after the discharge of bankrupt. This generally allows 9 years to arrange such sales. If the trustee does not do so, the property could potentially revest in the discharged bankrupt. The six year rule only applies to property disclosed to the trustee. If the property is not disclosed in the bankrupt’s statement of affairs or as after-acquired property, the trustee will have 20 years to deal with the property. 27 1 BANKRUPTCY AND THE FAMILY HOME WAR SERVICE HOMES A bankrupt or a debtor under Part X of the Bankruptcy Act cannot have a war service home taken from them, except in extraordinary circumstances. This arises from the provisions of the Defence Service Homes Act which state: DEFENCE SERVICE HOMES ACT 1918 - SECTION 45A Bankruptcy of purchaser or borrower (1) Except with the approval of the Secretary, the estate or interest of a purchaser or borrower in any land, land and dwelling-house or right of residence in a retirement village that is the subject of a contract of sale, or of a mortgage or other security securing a Corporation advance or a subsidised advance: (a) shall not be taken from the purchaser or borrower under the Bankruptcy Act 1966; and (b) shall not be sold in satisfaction of a judgment debt, otherwise than by the Bank or another mortgage in the exercise of powers under a contract of sale, or a mortgage or other security. (2) Where a husband and wife are joint purchasers or borrowers in relation to land, land and a dwelling-house or a right or residence in a retirement village, the Secretary may give an approval under subsection (10) in relation to the estate or interest of both of them if either of them becomes bankrupt or incurs a judgment debt. Although the secretary of the department has discretion to allow a trustee to sell the bankrupt’s property, in reality this discretion is very seldom applied. In our experience the secretary will not exercise his discretion even when the bankrupt has incurred very substantial business debts. There can be no doubt that some bankrupts have taken business risks which would otherwise have been avoided in the knowledge that they would not lose their home. This is inequitable as far as creditors are concerned, but that currently is the law. ‘By T he Way...’ SUMMARY 1.A bankrupt’s home can be sold even if the bankrupt only has a part interest in the property. 2.The trustee will normally offer the property for sale to any co-owner prior to having the property placed on the market. 3.The trustee will normally sell the interest in the property without undue delay. 4.The trustee must recover the value for the property but has a wide discretion regarding how to sell. 5.The trustee will normally allow the bankrupt a few weeks to arrange alternative accommodation. 6.The doctrine of exoneration or a constructive or resultant trust may adjust the distribution of the sale proceeds. 7.War Service homes are excluded from realisation. on can be bankrupt Did you know that a pe rs me time? more than once at the sa pt incurs furthe r This occurs when a bankru d be come s bankrupt de bts be fore discharge an ional de bts. as a re sult of those addit in such case s. Obviously special rules apply 28 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU PERSONAL INSOLVENCY 1 GETTING OUT OF BANKRUPTCY GETTING OUT OF BANKRUPTCY HOW DOES A BANKRUPTCY NORMALLY END? A person’s bankruptcy usually ends with the bankrupt being discharged from bankruptcy. This signifies the end of the legal process against the bankrupt. The bankrupt or trustee need do nothing to obtain a discharge, it is purely an operation of the Bankruptcy Act three years after the statement of affairs is lodged. The bankrupt estate may continue after discharge while the trustee finalises the estate, and the discharged bankrupt may have some ongoing obligations, but they will no longer be ‘bankrupt’. WHEN IS A BANKRUPT DISCHARGED? A bankrupt is automatically discharged three years after their statement of affairs is filed with ITSA (Insolvency and Trustee Service Australia) unless an ‘objection to the discharge’ has been filed by the trustee. If the bankruptcy was commenced via a debtor’s petition, the statement of affairs must have been filed at the same time and therefore the bankruptcy will end three years after acceptance of the debtor’s petition. If the bankruptcy was initiated by a sequestration order (an order of the court), the statement of affairs would not have been filed at that time. The bankrupt will have to complete a statement of affairs and lodge it with ITSA. As the bankruptcy ends three years after the filing of the statement, the longer the bankrupt takes to file it, the longer the bankruptcy will be protracted. If the statement of affairs is never filed, the bankruptcy will continue until the death of the bankrupt, however the conduct of the estate will continue until completed. CAN A BANKRUPT GET OUT OF BANKRUPTCY BEFORE DISCHARGE? Yes. The bankruptcy may be annulled. An annulment is a complete undoing of the bankruptcy, as if the bankruptcy never had happened. HOW IS A BANKRUPTCY ANNULLED? A bankruptcy will be annulled if: 1.The trustee has sufficient monies to pay all of the debts and costs of the estate; 2.A section 73 proposal is accepted by the bankrupt’s creditors; or 3.The bankrupt convinces the court that the bankruptcy should never have been commenced. WHAT ARE THE DEBTS AND COSTS OF THE ESTATE? The costs and debts are: (a)All provable debts of the estate; (b)The Asset Realisation Charge (ARC) payable to ITSA under the Act; (c)The expenses and remuneration of the Trustee; and (d)Any other charges or statutory costs of the estate. WHAT IS A SECTION 73 PROPOSAL? This is a formal proposal put to creditors under section 73 of the Bankruptcy Act. It provides a mechanism for bankrupts to put forward a proposal to their creditors as an alternative to the continuation of the bankruptcy. If the creditors accept the proposal, the bankruptcy is effectively exchanged for an obligation under the section 73 agreement. WHY WOULD THE COURT ANNUL A BANKRUPTCY? Usually the court will only annul a bankruptcy when it can be shown that the bankruptcy should never have been commenced. This may happen where the proper legal process was not followed in initially bankrupting the person, if there was no debt outstanding to that creditor at that time, or if the bankrupt is actually solvent. Bankrupts who successfully obtain an annulment through the court should be aware that the ex-trustee has the right to use the assets in their possession to pay outstanding remuneration and outlays, and if insufficient, may seek payment from the ex-bankrupt. For a bankruptcy to be annulled by all debts and costs being paid, the trustee must have sufficient money to satisfy all the pre-bankruptcy debts, the costs of the bankruptcy and the statutory charges. This type of annulment generally happens when the sale of an asset provides enough money to pay these costs, or when a friend or relative provides these funds. 29 1 INCOME CONTRIBUTIONS IN BANKRUPTCY INCOME CONTRIBUTIONS IN BANKRUPTCY CAN A BANKRUPT WORK DURING THEIR BANKRUPTCY? Yes. In most cases, a bankrupt will be able to earn an income during their bankruptcy. Subject to some provisions and exceptions, the bankrupt is encouraged to earn an income during this period as there is no logical reason why a bankrupt should not be entitled to earn an income and benefit from those earnings. The Bankruptcy Act states that they should also pay contributions to their estate from that income. WHAT ARE INCOME CONTRIBUTIONS? A working bankrupt may be liable to make a contribution to their bankrupt estate from income earned during their bankruptcy. It is equitable that some of the rewards from the bankrupt’s efforts during the bankruptcy period be used to satisfy their past debts and this has been put into statute in the Bankruptcy Act. WHAT INCOME IS ASSESSED FOR CONTRIBUTIONS? The bankrupt’s income is assessed to determine whether contributions must be paid. The provisions of the Bankruptcy Act set out the definition of income to be assessed. Income has the same meaning as defined under the Taxation Acts, but also includes other amounts that have not been earned from physical exertion or investments, and amounts that may not even be taxable income. These other incomes include loans made to the bankrupt, items that fall under the Fringe Benefit Tax provisions, annuities, pensions and some social security or insurance payments. IS ALL MONEY EARNED INCOME? No. There are a number of amounts that are not income for contribution assessment purposes. These are set out under paragraph (b) of section 139L. (b) The following are not income in relation to a bankrupt (even if they come within the ordinary meaning of “income”): (i) An amount paid to the bankrupt: (A) From the Child Support Reserve established under the Child Support (Registration and Collection) Act 1988 ; or 30 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU (B) From another source for the maintenance of children of whom the bankrupt has custody; or (iv) A payment to the bankrupt under: (A) A legal aid scheme or service established under a law of the Commonwealth or of a State or Territory of the Commonwealth; or (B) A legal aid scheme or service approved by the Attorney-General for the purposes of paragraph 2(4)(a) of the Federal Court of Australia Regulations; or (C) Any other legal aid scheme or service established to provide assistance to people on low incomes; (v) A payment or amount that the regulations provide is not income of the bankrupt. ARE ANY AMOUNTS DEDUCTIBLE FROM AFTER-TAX INCOME? Yes. Deductions are available for payments to support a child, if they are paid pursuant to a maintenance agreement under the Family Law Act or under a maintenance order. Deductions are also available for certain business expenses. Section 139N of the Bankruptcy Act sets out these deductions in detail. HOW DOES THE TRUSTEE OBTAIN INFORMATION ABOUT A BANKRUPT’S INCOME? It is a requirement under the Act that the bankrupt provide details of their income to their trustees. The trustee will usually send a form to be completed by the bankrupt on each anniversary of the date of bankruptcy. These forms need to be completed and returned with any documentation supporting the income earned and deductions claimed. WHAT IF THE BANKRUPT DOES NOT COMPLETE THE FORMS? It is an offence for the bankrupt not to cooperate with their trustee and complete the income assessment forms. If they do not do so, the trustee may object to the bankrupt’s discharge from bankruptcy (extending their bankruptcy period) and estimate the bankrupt’s income and assess them accordingly. CAN THE TRUSTEE INVESTIGATE THE BANKRUPT’S INCOME INFORMATION? Yes. Whilst the trustee has the power to make an assessment on what they reasonably believe to be the income of the bankrupt, practically they will investigate the matter as fully as possible before making that assessment. If the information received from the bankrupt is inadequate or questionable, the trustee will seek further information. If appropriate, the trustee can conduct their own examination and can request further information to be provided to clarify any matter. If the further information is not forthcoming, the trustee can make the assessment on what they reasonably believe the income is and it then up to the bankrupt disprove the assessment. PERSONAL INSOLVENCY 1 The calculation is made on assessed income, which is the surplus of income after tax, Medicare and proper deductions. A contribution will be payable if that assessed income is more than the current statutory threshold. The amount of that threshold is based on the number of dependents that the bankrupt had during that assessment period - see the ‘Thresholds’ page on our website for the current figures. The trustee is entitled to receive one half of the balance over the threshold. That is, the ‘over threshold after tax income’ is divided equally between the bankrupt and trustee. The formula is: (Assessed Income - Actual Income Threshold Amount) / 2 HOW IS THE ASSESSMENT MADE? The trustee makes an assessment on the estimated income based on the information supplied by the bankrupt at the beginning of the assessment year. An assessment (called a determination) is made on these estimates and the bankrupt becomes liable to pay any contributions to the trustee from the date of the assessment. At the end of the assessment period, the bankrupt will supply the actual amount of the past year’s income, along with estimates for the next year. The past year’s assessment is adjusted if necessary, then a new assessment is made for the next year’s estimated income and the process starts again. HOW OFTEN ARE THE ASSESSMENTS MADE? Each assessment period runs from the date of the bankruptcy or its anniversary and ends on the day before the next anniversary. Assessment periods continue until the bankrupt is discharged, even if the bankruptcy is extended through an objection to discharge. WHAT HAPPENS TO THE MONEY PAID UNDER AN ASSESSMENT? The money paid under these provisions will be paid into the general pool of funds that is available to creditors. WHAT OBLIGATIONS DOES THE BANKRUPT HAVE? The bankrupt must provide information about their income and deductions and provide access to all books and records required by the trustee. If the bankrupt neglects or refuses to provide either, the trustee can lodge an objection to the discharge of the bankrupt and ITSA may prosecute the bankrupt for an offence. HOW DOES THE BANKRUPT GET NOTICE OF THE ASSESSMENT? Once a determination has been made, the trustee sends a notice to the bankrupt setting out the amount payable and particulars on how the determination was calculated. The trustee will usually include a schedule for the payment of the contributions over the remaining months of the assessment period. IS THIS A LEGAL OBLIGATION? Yes. Issuing a notice of determination creates a legal obligation to pay the contribution. The trustee has the power to nominate when the payments are to be made and the debt can be collected from the bankrupt as a debt due. These rights remain after the bankrupt has been discharged, meaning that the bankrupt can be re-bankrupted for non-payment of any contribution. WHAT CAN THE TRUSTEE DO TO ENFORCE COLLECTION? INCOME CONTRIBUTIONS IN BANKRUPTCY HOW IS THE INCOME CONTRIBUTION CALCULATED? If an assessment is made and the bankrupt refuses or neglects to pay, the trustee can: (a)Issue notices to employers or other people that owe the bankrupt money to garnishee those monies. (b)Issue an objection to the discharge of the bankrupt, extending the bankruptcy period; (c)Prohibit the bankrupt from travelling overseas; (d)Re-bankrupt a discharged bankrupt, if the refusal to pay occurs after the bankrupt has been discharged; or (e)Issue a notice under the supervised account regime provisions of the Act. WHAT IS THE SUPERVISED ACCOUNT REGIME? Trustees may determine that the supervised account regime be activated. This requires the bankrupt to open a supervised account into which they must deposit all of their income. The trustee then supervises all withdrawals from that account to ensure that income contributions are made. The threat of these provisions generally encourages a bankrupt to make contributions as required. CAN THE ASSESSMENT BE REVIEWED? Yes. The Act provides a mechanism for any assessment to be reviewed by the Inspector General, but the request must be made within 60 days of the assessment. Upon receipt the Inspector General will then have 60 days to decide whether the assessment should be reviewed and make a ruling. These decisions handed down by the Inspector General may be reviewed by the Administrative Appeals Tribunal. 31 1 VOID TRANSACTIONS IN BANKRUPTCY VOID TRANSACTIONS IN BANKRUPTCY WHAT ARE THE PROVISIONS DESIGNED TO DO? Trustees of bankrupt estates investigate any pre-bankruptcy transactions when they suspect the transaction improperly transferred assets away from the bankrupt that would have come under the trustee’s control and therefore benefitted creditors. The Bankruptcy Act will sometimes allow these transactions to be voided and require the other party to return an asset or make a payment to the trustee. WHO MAY RECOVER MONEY UNDER THESE PROVISIONS? WHY DO TRUSTEES VOID SOME TRANSACTIONS? Trustees of bankrupt estates and personal insolvency agreements (PIA) may use these provisions to void transactions, if the PIA gives the trustee that right. However, this right is not available to trustees of Part IX or a PIA that where the agreement does not provide this right to the trustee. One of a trustee’s roles is to ensure that all of the bankrupt’s assets are available for distribution to creditors. Part of this role is to discover whether the bankrupt entered into a transaction that reduced the amount of assets that are available for distribution. The trustee will want to recover these assets and void any transaction that has provided an advantage to any creditor so that they can make a more equitable distribution to all creditors. WHAT MUST THE TRUSTEE DO TO BE ABLE TO MAKE A RECOVERY? To void a transaction, the trustee must: 1.Identify the transaction. 2.Identify the other party to the transaction. 3.Prove that the transaction occurred within a specific time period, or while the bankrupt was insolvent. 4.Prove that the transaction was either undervalue or had the required intention. 5.Show that the transaction did not involve protected property. Some debtors when realising that they are about to be made bankrupt, may want to protect some of their assets from their creditors. Some debtors hide, move or transfer these assets to a third party to hold during the period of bankruptcy. These provisions are meant to deter debtors from moving assets out of their own hands at the expense of their creditors, and to permit rightful recovery. WHAT TYPE OF TRANSACTIONS MAY BE VOIDED? These powers enable the trustee to void the following types of transactions: 1.Undervalued transactions (section 120). 2.Transfers done with the intention to defeat creditors (section 121). and 3.Transfers where the consideration was paid to a third party (section 121A). 32 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU UNDERVALUED TRANSACTIONS - SECTION 120 WHAT ARE UNDERVALUED TRANSACTIONS? Transfers of assets for less than market value are deemed ‘undervalue’. Sometimes a debtor will sell or transfer assets to third parties shortly before their bankruptcy and attempt to make the transaction look commercial. These transactions may take the form of the following: (i)A sale for less than the market value of the asset - moving a valuable asset to another party; or (ii)A purchase of something at a greater consideration than it is worth thus moving money to another party. Examples of these transactions include a debtor: (a)Selling their share of the family house to their spouse for $1.00 or ‘natural love and affection’; (b)Granting a mortgage or security to someone in exchange for monies that were lent in the past; (c)Purchasing an asset of limited worth and paying a high price. The trustee may void transfers of property (including money) if they were done within five years before the commencement of the bankruptcy. PERSONAL INSOLVENCY 1 Yes. The Act will protect transfers from being voided if (all three factors must be present): (a)It occurred more than two years before the commencement of the bankruptcy; and (b)It did not involve a party related to the debtor; and (c)The debtor was solvent at the time of the transfer and remained solvent after the transaction. Transactions undertaken with nonrelated parties whilst the bankrupt was solvent should be protected as a solvent debtor will not be prejudicing creditors by transferring assets. The other party to the transaction has the onus of proving that the bankrupt was solvent at the time of the transaction and remained solvent immediately thereafter. IS THE TIMING DIFFERENT IF THE OTHER PARTY IS RELATED TO THE BANKRUPT? Yes. The two year period extends to four years if the other party to the transaction is related to the bankrupt. This means that any undervalue transactions occurring in the period four years before the commencement of the bankruptcy are automatically void if they involve related parties, as defined as ‘related entities’ in the Bankruptcy Act. IS INSOLVENCY IMPORTANT? A person is solvent if they are able to pay all of their debts as and when they become due and payable. A person who is not solvent is therefore insolvent. The debtor must have been insolvent at the time in order to void a transaction if it occurred between the two or four year period mentioned above and within the five year time limit. The court will usually look to the trustee to provide some evidence to substantiate the state of insolvency at the time of the transfer. Consequently the onus of defending these claims and therefore declaring solvency, lies with the party seeking to rely on the defence. The Act provides for a presumption of insolvency if the debtor did not keep proper records of their financial affairs during that period, but that presumption is rebuttable (i.e. it may be disproved by positive evidence of solvency). This may be quite difficult if there are truly no records on the financial affairs of the bankrupt. ARE SOME TRANSFERS EXEMPT? Yes. Some transfers of property will not be void. The Act provides protection to payments of tax, payments under family law agreements and payments under part IX debt agreements. A transfer is exempt if it is: (a)A payment of tax payable under a law of the Commonwealth or of a State or Territory; or (b)A transfer to meet all or part of a liability under a maintenance agreement or a maintenance order; or (c)A transfer of property under a debt agreement; (d)A transfer of a kind described in the regulations; or (e)A transfers made under maintenance agreements or orders made in the Family Court. The Family Court would have to overturn the original maintenance order before the trustee will be able to make any recovery under this section. It would be difficult for any trustee to convince the Family Court that it should overturn its own decision in order to allow the trustee to recover assets from an ex-spouse. THE TRUSTEE MUST REFUND THE CONSIDERATION RECEIVED Section 120 voids the whole transaction, not just the recovery of an asset or money. This means that to get the transferred asset back, the trustee must refund any consideration received by the bankrupt as part of that transaction. This consequently places each party back to the position they held before the transaction was undertaken. Otherwise the estate would end up with both the consideration provided by the other party as well as the asset that was transferred. WHAT IS NOT CONSIDERATION? VOID TRANSACTIONS IN BANKRUPTCY ARE SOME TRANSFERS OF ASSETS PROTECTED? Some things are not deemed to be consideration and cannot be refunded. These include the transferee being related to the transferor; the transferee being a spouse or de facto spouse of the transferor; the transferee’s promise to marry or to become the de facto spouse of the transferor; love or affection; and the transferee granting a spouse a right to live at the transferred property. HOW LONG DOES THE TRUSTEE HAVE TO TAKE THE ACTION? Recovery actions must be commenced by the trustee within six years of the bankrupt becoming bankrupt. TRANSFERS TO DEFEAT CREDITORS - SECTION 121 WHAT ARE TRANSFERS TO DEFEAT CREDITORS? Sometimes debtors transfer property primarily to protect the property from their creditors. The Act allows such transfers to be voided where the intention of the bankrupt was to stop divisible assets becoming available to creditors, or where the intention of the bankrupt was to defeat or delay the proper distribution of assets to creditors. WHAT MAKES A TRANSFER FALL INTO THIS CATEGORY? To be a transaction to defeat creditors, it must involve: 1.Property that in all likelihood would have become part of the estate or been available to creditors and is made unavailable to the trustee because of the transfer; and 2.The intention of making that property unavailable to creditors, permanently or temporarily. 33 VOID TRANSACTIONS IN BANKRUPTCY 1 WHAT TYPES OF TRANSACTIONS ARE CAUGHT? THE TRUSTEE MUST REFUND THE CONSIDERATION RECEIVED HOW LONG DOES THE TRUSTEE HAVE TO TAKE THE ACTION? There must be a transfer of property. Something must pass from the bankrupt that would have become a divisible asset in the estate. However a transfer can also be of property created by the debtor that results in another person becoming the owner of something that did not previously exist. Prime examples are the creation of a mortgage, securities or other interests over property owned by the bankrupt, where the security would stop the property becoming available to the trustee. Section 121 voids the whole transaction, not just the recovery of an asset or money. This means that to get the transferred asset back, the trustee must refund any consideration received as part of that transaction, thereby placing each party back to the position they held before the transaction was undertaken. If this was not the case, the estate may end up with both the consideration provided by the other party, even if it was less than the value of the asset transferred, as well as the asset that was transferred (that can be realised). Actions under section 121 may be started at any time after the trustee discovers the transaction. The difference with other recovery provisions under the Bankruptcy Act is that the 121 transaction has a flavour of fraud and may be pursued more vigorously. HOW DO YOU DETERMINE THE BANKRUPT’S INTENTION? One of the main purposes of the transaction must be to protect the asset from creditors. This is subjective and usually must be inferred from the circumstances of the transaction, the financial position of the bankrupt at that time and the result of the transaction. But intention can also be deemed by the actual or impending insolvency of the debtor (if it can be shown that the bankrupt was or was about to become bankrupt at the time of the transaction). If the debtor was solvent at the time and remained solvent for some time after the transaction, it may be difficult to connect the transaction to the existence of the knowledge of insolvency. WHAT IS INSOLVENCY? A person is solvent if they are able to pay all of their debts as and when they become due and payable. A person who is not solvent is insolvent. IS INSOLVENCY IMPORTANT? The court will usually look to the trustee to provide some evidence on insolvency at the time of the transfer if the trustee is using the deeming provisions. The Act provides for a presumption of insolvency if the debtor did not keep proper records of their financial affairs during that period. That presumption is rebuttable, i.e. it may be disproved by positive evidence of solvency. This may be quite difficult if there are truly no records on the financial affairs of the bankrupt. 34 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU WHAT IS NOT CONSIDERATION? Some things are not deemed to be consideration and cannot be refunded. Things that are not consideration include the transferee being related to the transferor; the transferee being a spouse or de facto spouse of the transferor; the transferee’s promise to marry or to become the de facto spouse of the transferor; love or affection; and the transferee granting a spouse a right to live at the transferred property. TRANSFER NOT VOID IF DONE IN GOOD FAITH The Act will protect transfers where the transferee acted in good faith. To be able to rely on these provisions, the other party to the transfer must have (all three factors must be present): (i)Provided consideration at least to market value (calculated at the time of the transfer); and (ii)Have no knowledge of or could not have reasonably inferred the intention of the bankrupt; and (iii)Could not have inferred at the time that the transferor was insolvent or about to become insolvent. To be able to use this defence, the other party must have been completely oblivious of the debtor’s financial position and intention. As many of these transactions are done with relatives or other related parties, this lack of knowledge may be difficult to prove. It is not often that transactions examined under this section are undertaken with complete strangers. TRANSACTIONS WHERE CONSIDERATION GIVEN TO A THIRD PARTY - SECTION 121A WHO ELSE MAY BE INVOLVED IN THESE ACTIONS? Third parties not actually directly involved in a transaction between the bankrupt and another party can be the subject of recovery actions by the trustee, originally under sections 120 and 121 if they have received the consideration that should have been paid to the bankrupt. Currently section 121A is designed to allow the trustee to collect money from a third party where they received money that should have been paid to the bankrupt. In these scenarios it is not essential that the original transaction was undervalued or had the intention to defeat or delay creditors, as it is the payment of the consideration to the third party that will be examined. That is, did the third party give valuable consideration to the bankrupt for that money at that time, or was the intention of directing the payment to the third party done with the prerequisite intention? PERSONAL INSOLVENCY 1 The Act deems that the receiving of the consideration should be viewed as a transfer of property by the bankrupt to that third party. That consideration therefore constitutes that the property transferred and the transfer may be viewed under section 120 and 121. If that payment of consideration is considered void for reasons as set out in these sections, the consideration will be recoverable from the third party under this section. These provisions are relatively new and not entirely tried and tested in court. It is possible that the trustee will be able to take an action against the original party to the transaction and separately against the third party that received the consideration. PROTECTION OF CERTAIN TRANSFERS WHAT PROTECTION IS PROVIDED IN THE BANKRUPTCY ACT? The Act provides some protection to people dealing with a debtor before bankruptcy. A transaction is not automatically void because the debtor later becomes bankrupt. Essentially protection may be provided to people that had no knowledge of the impending bankruptcy and who acted in normal business circumstances. WHO GETS THIS PROTECTION? DIVISIBLE PROPERTY IN BANKRUPTCY WHAT CAN BE DONE? This provision protects an innocent, unknowing party who entered in a commercial transaction in ordinary dealings with the bankrupt, as long as the following factors are met: (a)The transaction happened before the bankruptcy (the bankrupt does not have the right to deal with their assets after bankruptcy); (b)The other party was unaware of the impending bankruptcy; and (c)The transaction was in good faith and in the ordinary course of business. ‘Good faith’ and ‘ordinary course of business’ elements may be difficult to prove. The other party must not have acted in any manner that would give the impression that they were not acting in good faith. Ordinary course of business has been held to be in the ordinary course of the relevant industry, not the ordinary course of that particular creditor. The burden of proof rests with the party attempting to gain the protection of the section. ‘ By T he Way...’ A p‘ re fe rential p ayment’ occurs w de btor m hen a ake s a spe cial p ayment creditor to a be fore b ankrupt cy. A tr can re c uste e ove r suc h a paym ent. But no re str iction on the re is a bankr upt using post ban his or he kruptcy r income t o pay an the y ple y credit ase aft or e r bank ruptcy. cannot in A truste e te rfe re with suc h payme nts. 35 1 PREFERENCES IN BANKRUPTCY PREFERENCES IN BANKRUPTCY WHAT ARE PREFERENTIAL PAYMENTS? Preferential payments or ‘preferences’ are payments or transfers of assets to creditors that gives that creditor an advantage over other creditors. These payments or transfers may be able to be recovered by trustees of bankruptcy estates under the provisions of the Bankruptcy Act. Preferences are usually payments of money, though a variety of transfers of assets could be preferential. WHO MAY RECOVER PREFERENTIAL PAYMENTS? WHAT ARE THE ELEMENTS OF A PREFERENTIAL PAYMENT? MUST THERE BE A DEBTOR CREDITOR RELATIONSHIP? In personal insolvency matters, only trustees of bankrupt estates and personal insolvency agreements (where the agreement includes recovery of these preferential transactions) may claim the return of preferential payments. Similar provisions also exist in the Corporations Act for payments made by companies. Before the court will void a payment or transfer, it must be satisfied that: Yes. The transaction must have involved or been done at the direction of a creditor of the bankrupt and must have satisfied a debt that would have been provable in the estate if the transaction had not been undertaken. WHY DO TRUSTEES VOID PREFERENTIAL PAYMENTS? (d)It occurred within the relevant time period before the bankruptcy; The trustee’s main role is to distribute the bankrupt’s assets fairly between their creditors. To do so they must discover whether any creditor has received treatment that would have given them a distribution - prior to bankruptcy - that was not equitable when compared to the distribution to other creditors in the bankruptcy. Trustees are able to void transactions that involve one creditor so that they can make a more equitable distribution to all creditors. (e)The transaction gave the creditor an advantage over other creditors (usually determined as the creditor receiving more than they would have if they had proved for that amount in the estate); and (a)A transfer of property was made (this is usually a payment of money); (b)Something passed from the bankrupt to a creditor or on the creditor’s instructions; (c)It occurred at a time when the bankrupt was insolvent; (f)The creditor suspected or should have suspected that the bankrupt was insolvent at the time. WHEN IS SOMEONE INSOLVENT? The Bankruptcy Act defines insolvent as not being able to pay all your debts as and when they become due and payable. The bankrupt must have been insolvent at the time of the transfer or payment. The reasoning is that a solvent person has the capability of paying all of their debts (whether they actually did or not) and therefore no creditor could have been advantaged over the others by receiving a payment. WHO HAS TO PROVE INSOLVENCY? The onus of proving insolvency lies with the trustee. 36 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU MUST THERE BE A TRANSFER OF AN ASSET? Yes. There must have been a transfer of some property between the parties. It is common for that transfer to be a payment of money, but any asset passing from the bankrupt to the creditor (even an asset that has just been created by the transaction, like a security) will be sufficient to be a transfer of property. The amount of the preference is the value of the asset transferred. WHAT IS THE RELEVANT TIME PERIOD? The transfer of the asset must have happened during a specific period before the bankruptcy. The period differs depending on how the bankruptcy was commenced: 1.Creditor’s petition - six months before the filing of the creditor’s petition. 2.Debtor’s petition (where a creditor’s petition is pending) - the period starts on the commencement of the bankruptcy; defined as the time of the earliest act of bankruptcy within the six months before the creditor’s petition was filed. 3.Debtor’s Petition - six months before the presentation of the debtor’s petition. PERSONAL INSOLVENCY MUST THE DEBT BE UNSECURED? Yes. A preference cannot be given to a creditor holding a security over assets. Secured creditors either give up their security (if the creditor is paid in full), or the bankrupt gains equity in the secured asset (if the creditor is not paid in full). However if the security was not properly created or the value of the security is less than the amount of the payment, then the transfer or the excess value over the security’s worth may be deemed as preferential. HAS IS PREFERENTIAL TREATMENT DETERMINED? The creditor must have received more than they would have received if they had refunded the monies and proved for that amount in the bankruptcy. This is purely a mathematical calculation. If the creditor did not receive more by way of the payment than they would have received from a dividend in the bankruptcy, there is no advantage or preferential treatment. WHAT DEFENCES ARE AVAILABLE TO CREDITORS? The three arms of the statutory defence are: 1.The transfer was in the ordinary course of business. 2.The recipient acted in good faith. 3.The recipient gave market value consideration or at least market value. The creditor must be able to prove all three arms of the defence otherwise the entire defence fails. The transfer is also not voidable if it was made pursuant to a maintenance agreement under the Family Law Act, or was made under a part IX debt agreement. WHAT IS GOOD FAITH AND THE ORDINARY COURSE OF BUSINESS? WHAT SHOULD CREDITORS DO IF A TRUSTEE CLAIMS A PREFERENTIAL PAYMENT? The creditor must not have acted in any manner that would give the impression that they were not acting in good faith or under normal trading conditions. Actions that may repute good faith are the issuing of proceedings or statutory notices to the debtor, ceasing supply etc. They must not have forced the payment to be made by way of threat or action. On a simplistic basis they should make sure that: WHAT IS MARKET VALUE CONSIDERATION? (d)The trustee shows that they received an advantage over other creditors. Usually the easiest component to prove is that the creditor gave market value consideration. If the creditor is a trade creditor, the initial supply of goods or services that created the debt would provide the market value consideration. A loan creditor can rely upon the initial loan to the bankrupt. The creditor will only have to show that they have given something of similar value in consideration for receiving the payment. WHEN WILL THE DEFENCES NOT BE AVAILABLE? The creditor cannot rely on the defences when they knew or had reason to suspect that the bankrupt was insolvent and that the transaction would give them a preference over other creditors. PREFERENCES IN BANKRUPTCY 1 (a)The transaction was done within the relevant time period; (b)They are not a secured creditor; (c)They are (or were) a creditor when the payment was made and that the payment was not a cash on delivery (COD) type transaction; The following points are more detailed and complex to determine: (a)Whether the creditor gave extra credit to the debtor after the payment in question was received. It is possible that the claim may be reduced or eliminated by the amount of extra credit granted. This is commonly known as the ‘running account defence’; (b)That the trustee can show insolvency at the time of or before the payment was received; (c)Whether the creditor has a realistic chance of convincing a Judge that all three of the statutory defences are available. WHAT CAN CREDITORS DO IF THEY HAVE TO REFUND MONEY TO A TRUSTEE? Creditors refunding preferences may lodge a proof of debt for the amount refunded. They may also have some rights under any guarantees given by other parties that support that debt. HOW LONG DOES THE TRUSTEE HAVE TO MAKE A CLAIM? Claims have to be commenced within six years after the commencement of the bankruptcy. It is not sufficient for the trustee to only have made a formal demand within that period, they must issue legal proceedings within that time period as well. 37 1 VOIDING SUPERANNUATION CONTRIBUTIONS VOIDING SUPERANNUATION CONTRIBUTIONS INTRODUCTION Trustees of bankrupt estates investigate pre-bankruptcy transfers or transactions when they believe the transaction improperly dissipated or removed assets that would otherwise have come under the trustee’s control and therefore are available to creditors. The Bankruptcy Act will sometimes permit these transactions to be voided and require the other party to return an asset or make a payment to the trustee. Sometimes contributions made by or on behalf of the bankrupt (pre-bankruptcy) to superannuation funds fall into this category. To void such a transaction, the trustee must show that: REASONS FOR AVOIDING THESE TRANSACTIONS 1.A transaction was entered into; One of a trustee’s functions is to ensure that all of the bankrupt’s assets are available for distribution to their creditors. Part of that role is to discover whether the bankrupt entered into a transaction before they became bankrupt that reduced the amount of assets that are available for distribution. The trustee will want to recover these assets. The provisions set out in this guide give the trustee the power to recover monies paid to eligible superannuation plans in the period before the bankruptcy. 2.They can identify the other party to the transaction. 3.The transaction occurred within a specific time period, or while the debtor was insolvent. 4.The transaction was either undervalue or had the required purpose. 5.It does not involve protected property. This guide deals with contributions made pre-bankruptcy that have all of these factors. Some debtors, realising that they are about to be made bankrupt, want to protect some of their assets from their creditors. Some debtors hide, move or transfer these assets to a third party to hold during the period of bankruptcy. Sometimes debtors pay the money into their superannuation plan as superannuation is generally an exempt asset. These provisions are meant to deter debtors from moving assets out of their own hands into their superannuation plan at the expense of their creditors, and allow a trustee to recover the money from the fund when the payments fall under the relevant conditions. 38 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU VOIDING PAYMENTS TO ELIGIBLE SUPERANNUATION PLANS CONTRIBUTIONS BY THE BANKRUPT Various sections of the Bankruptcy Act are designed to void transactions or transfers of property in order to provide a fair distribution of a bankrupt’s assets to their creditors. One well known section is section 121 ‘transfers to defeat creditors’ which is designed to void transfers where the intention of that transfer is to remove the property from the grasp of the trustee or creditors. Subdivision B of Division 3 of Part VI of the Bankruptcy Act is aimed at voiding transfers of property to eligible superannuation plans where the intention of the transfer was to defeat creditors. The main provisions are very similar to section 121, but these provisions have been tailored specifically with application to superannuation plans. This was necessary as the Bankruptcy Act generally excludes monies in superannuation plans from being divisible property. Transfers made by a debtor are void if they occurred after 28 July 2006 and: • T hey are made to eligible superannuation plans of the bankrupt; • The property would have formed part of the property available to creditors in a bankrupt estate if the transfer had not been made; • The main purpose of the transaction was to keep that asset from falling into the trustee’s hands and being available to creditors. PERSONAL INSOLVENCY 1 Most people will initially think of payments of money as transfers, but any property being transferred can be subject to these provisions. The section also goes one step further to include any transaction that creates new property. This is usually in the form of securities or equitable/legal interests over assets still owned by the debtor. That is, creating a charge in favour of the superannuation plan may be deemed to be a transfer of property. 7.For the purposes of this section: (a) transfer of property includes a payment of money; and (b) a person who does something that results in another person becoming the owner of property that did not previously exist, is taken to have transferred the property to the other person; and (c) the market value of property transferred is at market value at the time of the transfer. The trustee of the estate will examine payments to superannuation plans and any other assets created and will assess whether the payment falls within the above criteria. Most of the criteria are factual. The difficult part of the examination is determining the intention of the debtor at the time of the transfer. How that intention may be determined or deemed is set out below. CONTRIBUTIONS BY A THIRD PARTY Transfers to superannuation plans made by third parties on behalf of the debtor may also be caught under these provisions. Third parties may have assets that belong to the debtor or owe money to the debtor. Paying that money into a superannuation plan on the instruction of the debtor will be a transaction that can be examined. These are referred to as a ‘schemes’ in the Act. Again the intention of the transfer must be to defeat creditors. Transfers made by third parties are void if: • • • • T hey are made to eligible superannuation plans of the bankrupt; The property would have formed part of the property available to creditors in a bankrupt estate (usually as a debt due) if the transfer had not been made; The transfer occurred under a scheme to which the debtor was a party to - effectively if it was done under the debtor’s direct or implied instructions; The main purpose of the transaction was to keep that asset from falling into the trustee’s hands and being available to creditors BANKRUPTCY ACT 1966 - SECTION 128C Transfers that are void (1) If: (a) a person (the transferor) transfers property to another person, (the transferee); and (b) the transfer is by way of a contribution to an eligible superannuation plan for the benefit of a person who later becomes a bankrupt (the beneficiary); and (c) the transferor did so under a scheme to which the beneficiary was a party; and (d) the property would probably have become part of the beneficiary’s estate or would probably have been available to creditors if the property had not been transferred; and (e) the beneficiary’s main purpose in entering into the scheme was: (i) to prevent the transferred property from becoming divisible among the beneficiary’s creditors; or (ii) to hinder or delay the process of making property available for division among the beneficiary’s creditors; and (f) the transfer occurred on or after 28 July 2006; the transfer is void against the trustee in the beneficiary’s bankruptcy. (2) For the purposes of paragraph (1)(b), disregard a benefit that is payable in the event of the death of a person. VOIDING SUPERANNUATION CONTRIBUTIONS BANKRUPTCY ACT 1966 - SECTION 128B Superannuation contributions made to defeat creditors--contributor is a person who later becomes a bankrupt Transfers that are void (1) A transfer of property by a person who later becomes a bankrupt (the transferor) to another person (the transferee) is void against the trustee in the transferor’s bankruptcy if: (a) the transfer is made by way of a contribution to an eligible superannuation plan; and (b) the property would probably have become part of the transferor’s estate or would probably have been available to creditors if the property had not been transferred; and (c) the transferor’s main purpose in making the transfer was: (i) to prevent the transferred property from becoming divisible among the transferor’s creditors; or (ii) to hinder or delay the process of making property available for division among the transferor’s creditors; and (d) the transfer occurs on or after 28 July 2006. As with transfers made by the debtor, transfers of any property or newly created property by the transaction may be caught by these provisions. The major difference is the exclusion under subsection 2. of ‘benefits’ payable in the event of the death of a person. 9.For the purposes of this section: (a) transfer of property includes a payment of money; and (b) a person who does something that results in another person becoming the owner of property that did not previously exist is taken to have transferred the property to the other person; and (c) the market value of property transferred is its market value at the time of the transfer. 39 VOIDING SUPERANNUATION CONTRIBUTIONS 1 INTENTION BANKRUPTCY ACT 1966 - SECTION 128B One of the main purposes of the transaction must be to protect the asset from creditors - to defeat the creditor’s interest in the property. This intention only needs to be one of the main purposes of the transaction, not the only purpose. This is a subjective aspect which is usually inferred from the circumstances of the transaction, the financial position of the debtor at that time and the result of the transaction. Showing the transferor’s main purpose in making a transfer This intention can be deemed by the actual or impending insolvency of the debtor - but only if it can be shown that the debtor was or was about to become bankrupt at the time of the transaction. If the debtor was solvent at the time and remained solvent for some time after the transaction with no indication of an impending bankruptcy, it will be difficult to connect the eventual insolvency to the transaction. It is common that transactions with this intention are undertaken when a debtor has a pending legal action against them and it appears likely or inevitable that judgment will be brought down against them Alternatively it could be that a loan or other agreement has been breached and will lead to a demand that they will not be able to meet. In these circumstances, showing or deeming that the intention existed may be quite easy. Most bankrupts who undertake transactions to protect assets usually only do so close to the time of bankruptcy. (2)The transferor’s main purpose in making the transfer is taken to be the purpose described in paragraph (1)(c) if it can reasonably be inferred from all the circumstances that, at the time of the transfer, the transferor was, or was about to become, insolvent. (3) In determining whether the transferor’s main purpose in making the transfer was the purpose described in paragraph (1)(c), regard must be had to: (a) whether, during any period ending before the transfer, the transferor had established a pattern of making contributions to one or more eligible superannuation plans; and (b) if so, whether the transfer, when considered in the light of that pattern, is out of character. (4) Subsections (2) and (3) do not limit the ways of establishing the transferor’s main purpose in making a transfer. The trustee will also examine the debtor’s historical pattern of making contributions to eligible superannuation funds. If the payment is one of a series of very similar payments over a long period, there could be an argument that the required intention did not exist. If the payment is a once off large payment, especially if it is significantly larger than any previous payments, it can probably be safely deemed that the intention existed. THIRD PARTY CONTRIBUTIONS The same deeming provisions apply to transfers by third parties. If it can be shown that the debtor was insolvent or was about to become insolvent at the time, the intention can be deemed. The same indicators may also be used to determine the intention of the debtor. There is no requirement for the other party to know or suspect the insolvency, as there is no claim being made against that other party. 40 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU BANKRUPTCY ACT 1966 - SECTION 128C Showing the beneficiary’s main purpose in entering into the scheme (3) The beneficiary’s main purpose in entering into the scheme is taken to be the purpose described in paragraph (1)(e) if it can reasonably be inferred from all the circumstances that, at the time when the beneficiary entered into the scheme, the beneficiary was, or was about to become, insolvent. (4) In determining whether the beneficiary’s main purpose in entering into the scheme was the purpose described in paragraph (1)(e), regard must be had to: (a) whether, during any period ending before the scheme was entered into, the transferor had established a pattern of making contributions to one or more eligible superannuation plans for the benefit of the beneficiary; and (b) if so, whether the transfer, when considered in the light of that pattern, is out of character. (5) For the purposes of paragraph (4)(a), disregard a benefit that is payable in the event of the death of a person. (6) Subsections (3) and (4) do not limit the ways of establishing the beneficiary’s main purpose in entering into a scheme. INSOLVENCY The debtor does not have to have been insolvent at the time of the transaction for it to be void. As detailed in the last section, is it the intention of the debtor that is important through showing insolvency or pending insolvency is a key means of showing that intention. If the trustee is relying on that deeming provision, the court will require evidence on insolvency. Solvency and insolvency is defined in the Act as: PERSONAL INSOLVENCY 1 (2) A person is “solvent” if, and only if, the person is able to pay all the person’s debts, as and when they become due and payable. (3) A person who is not solvent is “insolvent”. The Act provides for a presumption of insolvency if the debtor did not keep proper records of their financial affairs during that period. That presumption is rebuttable, i.e. it may be disproved by positive evidence of solvency. This may be quite difficult if there are truly no records on the financial affairs of the debtor. BANKRUPTCY ACT 1966 - SECTION 128B Rebuttable presumption of insolvency (5) For the purposes of this section, a rebuttable presumption arises that the transferor was, or was about to become, insolvent at the time of the transfer if it is established that the transferor: (a) had not, in respect of that time, kept such books, accounts and records as are usual and proper in relation to the business carried on by the transferor and as sufficiently disclose the transferor’s business transactions and financial position; or (b) having kept such books, accounts and records, has not preserved them. The same rebuttable presumption of insolvency applies to transfers made by third parties. BANKRUPTCY ACT 1966 - SECTION 128C Rebuttable presumption of insolvency (7) For the purposes of this section, a rebuttable presumption arises that the beneficiary was, or was about to become, insolvent at the time the beneficiary entered into the scheme if it is established that the beneficiary: (a) had not, in respect of that time, kept such books, accounts and records as are usual and proper in relation to the business carried on by the beneficiary and as sufficiently disclose the beneficiary’s business transactions and financial position; or (b) having kept such books, accounts and records, has not preserved them. The rebuttable presumption is designed to stop bankrupts avoiding having their past transactions being overturned simply by destroying or hiding the records needed to examine the transaction. The presumption essentially deems that the debtor is insolvent at a particular time unless there are records that prove otherwise. As a consequence of that deemed insolvency, the transactions under examination can be said to have been done under the required intention. PROTECTION OF OTHER PARTIES The Bankruptcy Act goes to some lengths to ensure that innocent parties to void transactions are not prejudiced any more than necessary. The provisions that relate to the voiding of superannuation contributions are no different. The Act provides protection for two parties. The first party is the trustee of the eligible superannuation plan. When a contribution is received, certain taxes and other charges are deducted and paid to the government, fund managers etc. The trustee of the bankrupt estate will seek the voiding of the transfer - meaning the entire amount of the contribution. Payment of the entire contribution would leave the superannuation trustee (the plan) out of pocket to the extent of the taxes and charges. The Act provides that when an amount of the contribution is recovered, the amount of taxes and charges that apply to that contribution must be paid to the superannuation trustee, to ensure that they are not out of pocket. BANKRUPTCY ACT 1966 - SECTION 128B Refund of contributions tax etc. (5A) If: (a) as a result of subsection (1), a transfer made by way of a contribution to an eligible superannuation plan is void against the trustee in the transferor’s bankruptcy; and (b) any of the following amounts was debited from the contribution: (i) an amount in respect of tax in respect of the contribution; (ii) a fee, or a charge, in respect of the contribution>; and (c) in compliance with a section 139ZQ notice that relates to the transfer, the trustee of the eligible superannuation plan pays an amount to the trustee in the transferor’s bankruptcy; and (d) the amount paid in compliance with the section 139ZQ notice exceeds the amount so debited; the trustee in the transferor’s bankruptcy must pay to the trustee of the eligible superannuation plan an amount equal to the amount so debited. VOIDING SUPERANNUATION CONTRIBUTIONS BANKRUPTCY ACT - SECTION 5 Interpretation The interesting part is that this protection only applies to payments that are made to the bankruptcy trustee under a section 139ZQ notice. It is debatable whether this protection will apply if the superannuation trustee voluntarily returns the contribution to the bankruptcy trustee, or even if the bankruptcy trustee obtains an order of the court for the contribution to be returned. The other protection is given to innocent parties that received title to any property in good faith - meaning without any knowledge of the intention of the transfer. Protection of successors in title 6.This section does not affect the rights of a person who acquired property from the transferee in good faith and for at least the market value of the property. THIRD PARTY CONTRIBUTIONS This protection also applies to superannuation trustees when the contributions are made by other parties, but are voided under the appropriate provisions. The provisions are the same, only worded as contributions by other parties. 41 VOIDING SUPERANNUATION CONTRIBUTIONS 1 BANKRUPTCY ACT 1966 - SECTION 128C Refund of contributions tax etc. 7A.If: (a) as a result of subsection (1), a transfer made by way of a contribution to an eligible superannuation plan is void against the trustee in the beneficiary’s bankruptcy; and (b) any of the following amounts was debited from the contribution: (i) an amount in respect of tax in respect of the contribution; (ii) a fee, or a charge, in respect of the contribution; and (c) in compliance with a section 139ZQ notice that relates to the transfer, the trustee of the eligible superannuation plan pays an amount to the trustee in the beneficiary’s bankruptcy; and (d) the amount paid in compliance with the section 139ZQ notice exceeds the amount so debited; the trustee in the beneficiary’s bankruptcy must pay to the trustee of the eligible superannuation plan an amount equal to the amount so debited. SUPERANNUATION ACCOUNT-FREEZING NOTICES The same protection is also given to parties that obtain title to property without knowing the intention of the transfer when the contribution is made by another party. (ii) the trustee of the bankrupt’s estate has made an application for a section 139ZU order that relates to the transaction and the member’s superannuation interest Protection of successors in title 8.This section does not affect the rights of a person who acquired property from the transferee in good faith and for at least the market value of the property. These notices affect the superannuation plan trustee’s rights to deal with the funds in the plan, expect in limited circumstances. The notices are designed to ensure that the money is not paid out or otherwise disbursed before the issue of the potentially void transactions in question is resolved. PROTECTION AGAINST CRIMINAL AND CIVIL PROSECUTION The Bankruptcy Act also protects the trustee of the eligible superannuation plan from criminal and civil prosecution for acts done in good faith. These acts include complying with a section 139ZQ notice or an order of the court. 42 BANKRUPTCY ACT 1966 - SECTION 128L Protection of trustee of eligible superannuation plan (1) No criminal or civil proceedings lie against the trustee of an eligible superannuation plan because of anything done (or not done) by the trustee in good faith: WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU The Bankruptcy Act gives bankruptcy trustees certain powers to assist them in making these claims. One is the power to issue superannuation account-freezing notices. The notices are issued by the Official Receiver and are only done so when the bankruptcy trustee has satisfied the Official Receiver that there are “reasonable grounds” that a contribution to a plan is void. The notice comes into force when it is given to the trustee of the eligible superannuation plan. BANKRUPTCY ACT 1966 - SECTION 128E BANKRUPTCY ACT 1966 - SECTION 128L Giving of freezing notice (2) The Official Receiver may, by written notice (a superannuation account freezing notice) given to the trustee of the eligible superannuation plan, direct the trustee of the plan not to: (a) cash or debit; or (b) permit the cashing, debiting, roll-over, transfer or forfeiture of; the whole or any part of the superannuation interest except: (c) for the purposes of complying with a notice under section 139ZQ; or (1) This section applies in relation to a member of an eligible superannuation plan if the Official Receiver has reasonable grounds to believe that: (d) for the purposes of complying with an order under section 139ZU; or (a) a transaction is void against the trustee of a bankrupt’s estate under section 128B or 128C; and (f) for the purposes of giving effect to a family law payment split; or (b) either: (i) the whole or a part of the member’s superannuation interest is attributable to the transaction; or One important point is that the notice is either directed at the money paid into the plan from the contribution under examination (the money will have to be traced and identified in the plan at the time of issuing the notice) or the bankruptcy trustee must make an application for an order under section 139ZU in relation to rolled-over superannuation interests. The money must be identifiable. These notices do not act in the same way as a section 139ZQ notice (139ZQ notices are a quasi-judicial demand). In fact, one of the remedies that a bankruptcy trustee has is the ability to apply to the Official Receiver for notice under section 139ZQ. (e) for the purposes of charging costs against, or debiting costs from, the superannuation interest; or (g) in accordance with the written consent of the Official Receiver given under section 128H; or (h) for the purposes of complying with an order under paragraph 128K(1)(b); or (i) for the purposes of complying with an order under subsection 139ZT(2); or (j) in such circumstances (if any) as are specified in the regulations. Because the notice is given by the Official Receiver and affects the rights of the bankrupt on what would be otherwise exempt (non-divisible) property, the reasons for issuing the notice and the circumstances behind the decision to issue must be set out in the notice. That is, the notice must set out why the Official Receiver believes that the contributions to the superannuation plan are void. PERSONAL INSOLVENCY 1 (3) The superannuation accountfreezing notice must set out the facts and circumstances because of which the Official Receiver considers that the Official Receiver has reasonable grounds to believe that: (a) the transaction is void against the trustee of the bankrupt’s estate under section 128B or 128C; and (b) either: (i) the whole or a part of the member’s superannuation interest is attributable to the transaction; or (ii) the trustee of the bankrupt’s estate has made an application for a section 139ZU order that relates to the transaction and the member’s superannuation interest. A superannuation account-freezing notice is not an open ended right for a bankruptcy trustee. The notice may be revoked by the Official Receiver at any time. The notice will be automatically revoked if the money is claimed under the section 139ZQ notice and the notice is revoked or of the court sets aside the 139ZQ notice. That is, if the superannuation accountfreezing notice was supporting a section 139ZQ notice and that notice is satisfied or is revoked, the freezing notice is automatically also revoked. BANKRUPTCY ACT 1966 - SECTION 128F (3) If: (a) subparagraph 128E(1)(b)(i) applied in relation to a superannuation account-freezing notice given in relation to a member of an eligible superannuation plan; and (b) during the 180-day period after the superannuation accountfreezing notice comes into force, a section 139ZQ notice is given in relation to the transaction referred to in paragraph 128E(1)(a); the superannuation accountfreezing notice is revoked: (c) when the trustee of the plan complies with the section 139ZQ notice; or BANKRUPTCY ACT 1966 - SECTION 128F Revocation of freezing notice when section 139ZU order complied with etc. (5) If: (e) when the Court sets aside the section 139ZQ notice. (a) subparagraph 128E(1)(b)(ii) applied in relation to a superannuation account-freezing notice given in relation to a member of an eligible superannuation plan; and The bankruptcy trustee effectively has 180 days to take or conclude their action after the freezing notice is given. If they cannot provide sufficient evidence within that time to satisfy the Official Receiver that a section 139ZQ notice should be issued, the freezing notice will be revoked. (b) during the 180-day period after the superannuation accountfreezing notice comes into force, a section 139ZU order is made in relation to the transaction referred to in paragraph 128E(1) (a) and in relation to the member’s superannuation interest; (d) when the section 139ZQ notice is revoked; or BANKRUPTCY ACT 1966 - SECTION 128F Revocation of freezing notice if no section 139ZQ notice given after 180 days (4) If subparagraph 128E(1)(b)(i) applied in relation to a superannuation account-freezing notice given in relation to a member of an eligible superannuation plan, the superannuation accountfreezing notice is revoked if: (a) 180 days pass after the notice comes into force; and (b) no section 139ZQ notice has been given in relation to the transaction referred to in paragraph 128E(1)(a). Similarly if the bankruptcy trustee is seeking relief through a section 139ZU order, then the court may order; (i)compliance with that order or (ii)that order being set aside or dismissed or (iii)if the application for the order is withdrawn within the 180 day period, the freezing notice will automatically be revoked. VOIDING SUPERANNUATION CONTRIBUTIONS BANKRUPTCY ACT 1966 - SECTION 128E the superannuation accountfreezing notice is revoked: (c) when the trustee of the plan complies with the section 139ZU order; or (d) when the section 139ZU order is set aside on appeal. Revocation of freezing notice when application for section 139ZU order dismissed or withdrawn (6) If: (a) subparagraph 128E(1)(b)(ii) applied in relation to a superannuation account-freezing notice given in relation to a member of an eligible superannuation plan; and (b) during the 180-day period after the superannuation accountfreezing notice comes into force: (i) the Court dismisses an application for a section 139ZU order in relation to the transaction referred to in paragraph 128E(1) (a) and in relation to the member’s superannuation interest; or (ii) an application for a section 139ZU order in relation to the transaction referred to in paragraph 128E(1)(a) and in relation to the member’s superannuation interest is withdrawn; the superannuation accountfreezing notice is revoked. The notice is also revoked if no order under section 139ZU is made within the 180 day period. 43 VOIDING SUPERANNUATION CONTRIBUTIONS 1 BANKRUPTCY ACT 1966 - SECTION 128F SECTION 139ZU ORDERS Revocation of freezing notice if no section 139ZU order made after 180 days The provisions that allow bankruptcy trustees to recover money paid into eligible superannuation plans also contemplates the transfer of money (the roll-over of superannuation interests) between more than one plan or between one or more people. It allows the tracing of the void money into a second plan. Section 139ZU allows the court to make an order directing a payment of money from the second plan to the bankruptcy trustee, but there are limitations. (7) If subparagraph 128E(1)(b)(ii) applied in relation to a superannuation account-freezing notice given in relation to a member of an eligible superannuation plan, the superannuation accountfreezing notice is revoked if: (a) 180 days pass after the notice comes into force; and (b) no section 139ZU order has been made in relation to the transaction referred to in paragraph 128E(1) (a) and in relation to the member’s superannuation interest. The trustee is bound by a 180 day period, but that period may be extended on application to the court. BANKRUPTCY ACT 1966 - SECTION 128F Extension of 180 day period (8) The Court may, on application by the Official Receiver, extend, or further extend, the 180 day period referred to in subsection (5), (6) or (7). (9) The Official Receiver may make an application under subsection (8): (a) if the Official Trustee is the trustee of the bankrupt’s estate--on the initiative of the Official Receiver; or (b) if a registered trustee is the trustee of the bankrupt’s estate--on application by the registered trustee. The first limitation is that the contribution to the first plan must be void under the provisions set out above. This is the void transaction. But if the money has been transferred (rolled over) to another plan, there may not be sufficient funds left in that first plan to satisfy a claim. If there is sufficient money still in the first plan to pay the claim, this provision will not be necessary. But there may be a shortfall. The money, or part of it, would now be in a second plan. The shortfall contemplated in the section is the shortfall between the money remaining in the first plan and the amount of the bankruptcy trustee’s claim. Only the amount of the shortfall may be claimed from the second plan. Essentially the trustee can keep tracing the money into the new plan and effect a recovery of the shortfall. BANKRUPTCY ACT 1966 - SECTION 139ZU Order relating to rolled-over superannuation interests etc. (1)If, on application by the trustee of a bankrupt’s estate, the Court is satisfied that: (a) a transaction is void against the trustee of the bankrupt’s estate under section 128B or 128C; and (b) the transaction was by way of a contribution to an eligible superannuation plan (the first plan)for the benefit of a person (the beneficiary) who may or may not be the bankrupt; and (c) the beneficiary’s withdrawal benefit in relation to the first plan falls short of the amount of the money, or the value of the property, received as a result of the transaction; and (d) the beneficiary has a superannuation interest in another eligible superannuation plan; and (e) the superannuation interest referred to in paragraph (d) is attributable, in whole or in part, to the roll over or transfer, after the transaction referred to in paragraph (a) happened, of the whole or a part of the beneficiary’s superannuation interest in the first plan; the Court may, by order, direct the trustee of the other eligible superannuation plan to pay to the trustee of the bankrupt’s estate a specified amount not exceeding whichever is the lesser of the following: (f) the amount of the shortfall referred to in paragraph (c); (g) the beneficiary’s withdrawal benefit in relation to the other eligible superannuation plan. 44 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU PERSONAL INSOLVENCY 1 PART X PERSONAL INSOLVENCY AGREEMENTS PART X PERSONAL INSOLVENCY AGREEMENTS WHAT IS PART X OF THE BANKRUPTCY ACT? Part X (part 10) is a part of the Bankruptcy Act that allows a debtor to enter into an arrangement with their creditors to satisfy their debts without being made bankrupt. This type of proposed arrangement to creditors is called a personal insolvency agreement (PIA). WHY CHOOSE A PART X AGREEMENT? WHAT IS A PERSONAL INSOLVENCY AGREEMENT? A debtor will usually use a personal insolvency agreement to: It is the formal agreement between a debtor and their creditors that sets out how the debtor will satisfy their debts. It is in the form of a deed and is executed by the debtor and their trustee once creditors have agreed to the proposal. (i)Get relief from their debts; (ii)Ensure a fair distribution of their assets to creditors; (iii)Provide a higher dividend than would be payable in bankruptcy; (iv)Maintain their source of income; and (v)Avoid the restrictions of bankruptcy. HOW IS THE PROCESS STARTED? A debtor must choose a controlling trustee (a solicitor or a registered trustee in bankruptcy) and provide them with three documents: 1An authority under Section 188 giving the controlling trustee control over their assets and requiring them to call a meeting of creditors to consider the proposal. 2.A statement of affairs detailing all assets, liabilities and other personal information. 3.A draft personal insolvency agreement detailing the terms of the proposal to be made to creditors. The controlling trustee will sign a consent to act and will forward the documentation to ITSA (Insolvency & Trustee Service Australia) for registration on the official record. ITSA will then allocate the estate an ‘estate number’. The proposal can contain almost any lawful term and conditions. Usually it will provide for the repayment of monies over time and sometimes the sale of some assets. It will also usually contain a moratorium from creditor’s claims for the term of the agreement, and payment of a sum which is less than the full amount in full satisfaction of claims. HOW IS THE PROPOSAL ACCEPTED? The controlling trustee must hold a meeting of creditors within 25 business days after the appointment. The creditors attending this meeting will decide whether to accept the proposal or not. There must be a majority in both the number of the creditors and more than 75% in value in favour of the proposal for it to be accepted. This is called a special resolution. If the proposal is not accepted by the required majority, the creditors may resolve that the debtor become bankrupt, but cannot actually bankrupt the debtor at that meeting. Creditors may also resolve that the debtor be released from the control of the controlling trustee, allowing creditors to commence recovery action or bankruptcy proceedings against them. IS SIGNING A SECTION 188 AUTHORITY AN ACT OF BANKRUPTCY? Yes. In the course of the Part X process a debtor will commit a number of acts of bankruptcy, including signing the section 188 authority, calling a meeting of their creditors and obtaining a special resolution by creditors. Any creditor may use these acts to apply to the court to have the debtor made bankrupt if the proposal is not accepted. HOW ARE CREDITORS AFFECTED BY THE PERSONAL INSOLVENCY AGREEMENT? Secured creditors’ rights under their securities remain intact. They may exercise their rights regardless of the outcome of the meeting and acceptance of the proposal. Unsecured creditors with debts that would be provable in a bankruptcy exchange their right to enforce their claims for a right to share in the proceeds of the personal insolvency agreement. If accepted by the required majority, all unsecured creditors will be bound by the agreement whether they attended the meeting or not, or voted in favour of the proposal or not. HOW DOES THE AGREEMENT AFFECT THE DEBTOR’S PROPERTY AND INCOME? Only property that is included in the personal insolvency agreement is affected. Property that is not included in the agreement is not available to creditors. The debtor is only required to contribute part of their income if the agreement includes terms requiring them to do so. When applicable, the debtor will make the same type of contribution out of their income as they would if they were bankrupt. 45 1 PART X PERSONAL INSOLVENCY AGREEMENTS CAN THE TRUSTEE PAY DIVIDENDS? Yes. The trustee will make distributions in accordance with the terms of the agreement. When dividends are paid will depend on the duration of the agreement and when funds become available. If the duration is expected to be short, the trustee will usually pay a dividend when all of the assets have been realised and all funds collected. If the agreement extends over a long period, the trustee may make interim distributions as money becomes available. WHEN DOES A PERSONAL INSOLVENCY AGREEMENT END? The agreement ends when the debtor satisfies the requirements of the deed in full. WHAT HAPPENS IF THE DEBTOR DOES NOT COMPLY WITH THE TERMS OF THE AGREEMENT? WHO ADMINISTERS A PERSONAL INSOLVENCY AGREEMENT? CAN A DEBTOR CONTINUE TO ACT AS A DIRECTOR OF A COMPANY? The proposal for an agreement must include the appointment of a registered trustee or the Official Receiver to administer the agreement. If no one is nominated, the Official Receiver will be the trustee. Their powers and obligations will be set out in the agreement and in conjunction with the Bankruptcy Act. Fundamentally they are; to enforce the terms of the agreement, sell any assets, collect any monies and make a distribution to creditors. No. A debtor cannot act as a director whilst subject to the terms of a personal insolvency agreement. This restriction is lifted when the agreement has ended. DOES SIGNING A SECTION 188 AUTHORITY AFFECT A CREDIT RATING? GOVERNMENT REALISATION CHARGE The administration attracts a government charge known as ‘Asset Realisation Charge’. This charge is payable at the rate of 4.4% of gross monies received into the estate, less payments to secured creditors and trade on costs. It is a priority payment to any dividend payable to creditors. Yes, the fact that the debtor has signed a section 188 Authority will be recorded by credit agencies. But this may be more favourable than outstanding writs, defaults and a bankruptcy on the debtor’s file. If the terms of the agreement are not satisfied, then the agreement will be considered to be in default. Usually a default notice will be issued to the debtor within a few days and if not rectified, the agreement will be breached and may be terminated by: (i)The provisions of the agreement, automatically terminating the agreement; (ii)The trustee terminating the agreement with the consent of creditors; (iii)The passing of a special resolution at a meeting of creditors, or (iv)An application to the court to terminate the agreement and possibly bankrupt the debtor. ‘By The Way...’ Many, if not most bankrupts wish they had decided to move to bankruptcy earlier than they did! Often the delay only puts off the inevitable and adds to the stre ss of the financial burden. Better to face up to the inevitable and get the fresh start promoted by the Bankruptcy Act. 46 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU PERSONAL INSOLVENCY 1 SECTION 73 PROPOSALS SECTION 73 PROPOSALS WHAT IS A SECTION 73 PROPOSAL? During the course of a bankruptcy, a bankrupt may be in a position to make a proposal to their creditors to satisfy their debts and consequently end their bankruptcy. Section 73 of the Bankruptcy Act provides a bankrupt with the mechanism to make that proposal. If accepted, the creditors would expect to receive a larger distribution than they would receive under the continued bankruptcy and the bankrupt would be released from the restrictions associated with bankruptcy. HOW DO BANKRUPTS MAKE A PROPOSAL? COMPOSITION OR ARRANGEMENT? HOW IS THE PROPOSAL ACCEPTED? The bankrupt will be required send a written proposal to their trustee requesting that a meeting of creditors be called to consider the proposal. This written request will set out the particulars of their proposal. The trustee will conduct any necessary investigations into the benefits of the proposal, issue a report and call a meeting for the creditors to vote on the acceptance or rejection of the proposal. A proposal under section 73 can be structured as either as a ‘composition’ or a ‘scheme of arrangement’. The proposal is put to creditors at a meeting called under the same provisions as bankruptcy meetings. The creditors attending that meeting vote on the proposal. The proposal must be accepted by a special resolution, which is both a majority in number of the creditors present and voting, and at least 75% of the dollar value of the creditor’s debts present and voting. The bankrupt will usually be required to pay the trustee to undertake this process as there is no requirement for the funds in the estate to be used for this purpose. If the proposal is accepted, the bankruptcy will be annulled at the time of the acceptance. If the proposal is not accepted, the bankruptcy will continue as if the proposal had never been put forward to creditors. A composition is an agreement to pay money to the trustee. The composition can be for any amount and can be paid over any period of time. A scheme of arrangement can contain almost any lawful provision. It can contain provisions for the payment of monies, the sale of certain assets, payments from third parties, or any combination of these factors. INVESTIGATING AND REPORTING Before holding the meeting of creditors the trustee will conduct investigations and issue a report to creditors detailing the terms of the proposal. The report will compare the likely returns from the proposal to that of the continuation of the bankruptcy. This report will not be issued until the investigations are complete and the trustee has properly examined all relevant matters. DELAYS IN CALLING A MEETING OF CREDITORS A trustee is entitled to decline to call a meeting if the proposal does not adequately provide for the payment of the bankruptcy trustee’s approved fees and outlays. The trustee also may require that the bankrupt pay an amount (a surety) to cover the costs and fees of the trustee for investigating the proposal, calling and holding the meeting. This money will have to be paid before the proposal is examined. If the proposal is accepted, the bankruptcy is consequently annulled. The now ‘ex-bankrupt’ will be bound by the terms of the agreement. The agreement is binding on all creditors, whether they attend or vote at the meeting or not. If the proposal is defeated, the bankruptcy continues as normal. WHO ADMINISTERS A SECTION 73 PROPOSAL? The proposal must include a provision for a trustee to administer the agreement. It is usual that the trustees of the bankrupt estate will be the trustees of the section 73 agreement, but a new trustee may be appointed under the agreement. The trustee’s role is to ensure that the ex-bankrupt complies with the terms of the agreement and enforce the provisions as necessary. They will also pay dividends to creditors. 47 1 SECTION 73 PROPOSALS WHAT ABOUT THE ACTS OF THE PREVIOUS BANKRUPTCY TRUSTEE? Section 74 of the Bankruptcy Act provides that the acts of the bankruptcy trustee during the period of bankruptcy remain valid. Without this provision, the bankrupt or any party to a bankrupt’s transactions would be able to challenge its validity. CAN THE TRUSTEE PAY DIVIDENDS? Yes. The trustee of the agreement will make distributions under the terms of the agreement. If the agreement does not stipulate these provisions, they will make distributions when practical given the amount of money on hand and when the agreement is likely to end. WHEN DOES A SECTION 73 AGREEMENT END? The agreement ends when the debtor fully satisfies the requirements of the agreement. WHAT IF THE DEBTOR DEFAULTS? GOVERNMENT REALISATION CHARGE Section 76B provides enforcement provisions. These will be used if the debtor does not fulfil the terms of the agreement. All of the powers that are available to a trustee under Part X of the Act (in the enforcement of personal insolvency agreements) are available to a trustee of a composition or scheme of arrangement. These include: The administration of section 73 proposals attracts a government charge known as ‘asset realisation charge’. Currently this charge is payable at the rate of 4.4% of gross monies received into the estate, less payments to secured creditors and trade on costs. It is payable in priority to any dividend to creditors. (i)Terminating the agreement automatically through the terms of the agreement; (ii)Terminating the agreement with the consent of creditors; (iii)Terminating the agreement by resolution of creditors; or (iv) Terminating the agreement by court order. Any application to the court to terminate the agreement can also include an application to bankrupt the debtor and initiate a new bankruptcy. ‘By The Way...’ Did you know that de ceased estates can become bankrupt? When the liabilities of de ceased estate are greater than of the assets of the estate Part XI the the value of the Bankruptcy Act provides for the est ate to be made bankrupt by a creditor or the exe cutor. Executors of insolvent de ceased est ates 48 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU should probably make more use of Part XI. PERSONAL INSOLVENCY 1 REVESTING OF PROPERTY REVESTING OF PROPERTY WHAT IS REVESTING OF PROPERTY? Vesting of property to a bankruptcy trustee occurs at the commencement of a bankruptcy. Revesting is the transfer of any property that had previously vested in a bankruptcy trustee back to the bankrupt after they have been discharged from bankruptcy. These provisions (under section 129AA of the Bankruptcy Act) are meant to encourage trustees to realise assets as expediently as possible. Provisions dealing with the revesting of property were added to the Bankruptcy Act in 2003. Prior to then all property of a bankrupt vested in the trustee and there was no mechanism for that property to revest. Trustees could hold property for 20 years and no one else could deal with that property unless the trustee disclaimed their interest in it. The revesting provisions changed this position. WHICH ESTATES DO THE PROVISIONS AFFECT? All bankruptcy estates are subject to the revesting provisions, regardless if the bankrupt was discharged before the implementation of the provisions in 2003. WHAT TYPE OF PROPERTY IS AFFECTED? Subject to the exemptions below, all non-cash property is able to be revested. Cash held at the time of bankruptcy or cash acquired during the bankruptcy is excluded from the revesting provisions as it does not need to be realised. WHAT ARE THE OTHER EXEMPTIONS? Two major classes of property will never revest back in the bankrupt. They are: 1.Property that was not disclosed in the bankrupt’s statement of affairs, and 2.Property acquired after bankruptcy (after-acquired property) which was not notified to the trustee within 14 days of the bankrupt’s knowledge of its acquisition. These exemptions are designed to stop bankrupts from not disclosing property to their trustees and having that property revest to them. The bankrupt must ensure that the trustee is aware of the property for it to be eligible for revesting. Section 127 gives the trustee 20 years to realise property both non-disclosed and excluded from the revesting provisions. WHEN DOES AN ASSET REVEST? Property will revest to the bankrupt six years after discharge. When that six year period commences will depend upon when the bankrupt estate commences. There are two possibilities for property disclosed in the statement of affairs: 1.For bankrupts who are discharged after 5 May 2003, the revesting date is six years after the date of discharge regardless of whether the bankruptcy commenced before or after 5 May 2003. 2.For bankrupts who were discharged before 5 May 2003, the revesting date was six years after 5 May 2003. That is, the revesting date was 5 May 2009 unless the revesting date was extended. The earliest date that any property in any estate could have revested to any bankrupt was 5 May 2009, but generally it will be six years after the date of discharge. WHEN DOES “AFTER-ACQUIRED PROPERTY” REVEST? The acquisition of after-acquired property must be notified to the trustee within 14 days of the bankrupt’s knowledge of the acquisition. The revesting date for this property is six years after either the date of discharge or the date of notification, whichever is later. For example: 1.Where the acquisition and notification occurs before the discharge of the bankrupt, the revesting date is six years after the date of discharge, or if discharge occurred before 5 May 2003, the revesting date of 5 May 2009 applies; 2.Where the acquisition occurs before the discharge of the bankrupt but notification is given after discharge, the revesting date is six years after the date of the notification, or if notification occurred before 5 May 2003, the revesting date of 5 May 2009 applies. These cases will be fairly limited as the discharge date must fall within 14 day after the acquisition of the property and before notification. Again, the earliest date that afteracquired property revested to any bankrupt was 5 May 2009. WHAT HAPPENS WHEN AN OBJECTION TO DISCHARGE IS LODGED? The six year period before revesting starts with the discharge of the bankrupt, which may be up to five years after the normal date for discharge. That is, revesting may not occur until 14 years after the start of a bankruptcy where an objection has extended the bankruptcy period for five years. If the objection is removed and the bankrupt is immediately discharged under statutory discharge provisions, the six year period commences on the date that the objection is removed (the actual date of discharge), not the date that would have been the date of discharge if there had been no objection. CAN THE TRUSTEE DELAY THE REVESTING OF PROPERTY? Yes. The trustee may issue an extension notice to the bankrupt during the unexpired six year period and extend the revesting period for a further three years after the ‘current’ revesting period or three years after a specified event. The Bankruptcy Act does not have any limit to the number of extension that the trustee can make. Therefore in theory, the trustee can keep extending the period indefinitely. BANKRUPTCY ACT 1966 - SECTION 129AA (4) If the trustee, before the current revesting time, gives the bankrupt a written notice (an extension notice) stating that a later revesting time applies to particular property, then that later time becomes the revesting time for that property. (5) There is no limit on the number of extension notices that the trustee may give (either generally or in relation to particular property. 49 1 DISCHARGE & ANNULMENT DISCHARGE & ANNULMENT INTRODUCTION A bankruptcy usually ends with the bankrupt being discharged. Without an objection to discharge being lodged, this will occur three years after the filing of the bankrupt’s statement of affairs with ITSA (Insolvency and Trustee Service Australia). Discharge releases the bankrupt from the bankruptcy, however the bankrupt estate (property, assets etc) will continue as long as required for all matters to be satisfactorily concluded. This means the discharged bankrupt still has an obligation to cooperate with the trustee. The alternative to a discharge from bankruptcy is to have the bankruptcy annulled. Discharge and annulment do not have the same legal result. A discharge is the conclusion to the legal status of bankruptcy against the person, while the bankrupt estate will continue until the trustee has completed their duties. An annulment cancels the bankruptcy entirely – as if it never happened, therefore removing the bankrupt from bankruptcy and ending the bankrupt estate completely. The Bankruptcy Act provides for an extension to a bankruptcy to a total of five or eight years in circumstances where the bankrupt has not cooperated with the trustee or when an offence has been committed. If an objection is lodged against the discharge of a bankrupt, the automatic discharge date will not occur until the end of the granted extended period. DISCHARGE FROM BANKRUPTCY TIMING OF DISCHARGE The bankruptcy of a person will normally end three years after the statement of affairs is filed with ITSA. This occurs pursuant to section 149 of the Bankruptcy Act. This is the most common way that a person ceases to be a bankrupt. If the bankruptcy is started by way of a debtor’s petition, the statement of affairs would have been filed with the debtor’s petition at the time of bankruptcy. Without an objection to discharge being lodged, the bankruptcy will end three years after the date of the filing of both of these documents. If the bankruptcy is started by way of an order of the court (a sequestration order), the statement of affairs would not have been filed at the time of the bankruptcy. The bankrupt will have to submit a completed a statement of affairs to ITSA. In this scenario the bankrupt will be discharged three years after ITSA receives the statement of affairs. It usual for someone who has been made bankrupt by the court to be bankrupt for longer than a three year period, if only by a few weeks or so, due to the need for the bankrupt to complete and submit the statement to ITSA. Consequently the longer the bankrupt takes to send their statement of affairs to ITSA, the longer that the period of bankruptcy will continue. If the statement of affairs is never filed, the bankruptcy will continue until the bankrupt dies. It is important to note that the bankruptcy does not start with the filing of the statement of affairs, it commences when the order of the court is made or at the time that the debtor’s petition is accepted. It is only the end date that is dependent upon the date of the filing of the statement of affairs. Some people believe that they do not become bankrupt until their statement of affairs is filed. This is not correct. The discharge is purely an automatic process of law. The trustee and/or ITSA need not do anything to grant the bankrupt a discharge, whether at the end of the standard three year period or at the end of a period extended due to an objection to discharge. Usually the trustee will write to the bankrupt and confirm they have been discharged and ask for information to conduct a final income assessment. BANKRUPTCY ACT 1966 - SECTION 149 Automatic discharge (1) Subject to section 149A, a bankrupt is, by force of this subsection, discharged from bankruptcy in accordance with this section. (4) If the bankrupt becomes a bankrupt after the commencement of section 27 of the Bankruptcy Amendment Act 1991 , the bankrupt is discharged at the end of the period of 3 years from the date on which the bankrupt filed his or her statement of affairs. This section also allows for the discharge of bankrupts who were bankrupted before this section was amended in 1991 but had not lodged statements of affairs before the amendment. Discharge without the lodgement of a statement of affairs is no longer possible. BANKRUPT TO CONTINUE TO ASSIST TRUSTEE AFTER DISCHARGE Even though the bankruptcy ends, there is still an obligation on the discharged bankrupt to assist the trustee as the conduct of the bankrupt estate may still be continuing. Though it is common for the estate to be completed within the three year period, sometimes it is not completed in that period. The estate will not end until the trustee has completed all of the necessary tasks. The discharged bankrupt must provide all reasonable assistance to the trustee, and there are penalties if they do not do so. BANKRUPTCY ACT 1966 - SECTION 152 Discharged bankrupt to give assistance. A discharged bankrupt must, even though discharged, give such assistance as the trustee reasonably requires in the realisation and distribution of such of his or her property as is vested in the trustee. Penalty: Imprisonment for 6 months. 50 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU PERSONAL INSOLVENCY 1 RELEASE FROM DEBTS One of the effects of discharge is to release the bankrupt from their provable debts. These are debts that were outstanding at the date of bankruptcy (not ones incurred after the bankruptcy commenced) and that can be proved in the bankrupt estate for dividends. But there are some debts that are not provable in the estate and will not be released and some that are only partially released. It is important to note that the debts are only released at the point when the bankrupt is discharged from bankruptcy. This allows some creditors - like the Australian Taxation Office to offset monies payable to the bankrupt after bankruptcy against debts payable by the bankrupt before bankruptcy. As the debts are released upon the discharge of the bankruptcy, if the bankruptcy ends before discharge via annulment the debts will therefore still exist and will have to be satisfied in some other manner. These debts are usually satisfied in the process of getting the annulment e.g. payment in full or through a section 73 agreement. BANKRUPTCY ACT 1966 - SECTION 153 Effect of discharge (1)Subject to this section, where a bankrupt is discharged from a bankruptcy, the discharge operates to release him or her from all debts (including secured debts) provable in the bankruptcy, whether or not, in the case of a secured debt, the secured creditor has surrendered his or her security for the benefit of creditors generally. Section 82 sets out what debts are provable in the estate and will be released upon discharge. Most of the time all of a bankrupt’s debts will fall into this category and be discharged, but there are some significant exceptions. BANKRUPTCY ACT 1966 - SECTION 82 Debts provable in bankruptcy (1)Subject to this Division, all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his or her bankruptcy. Debts that are provable are released and debts that are not provable are not. Furthermore there are some debts that are provable in the estate for the amount owing, but by statute are still not released in full at discharge. These generally relate to amounts under a maintenance agreement or maintenance order given before the date of the bankruptcy. The amount that was outstanding under the agreement at the time of the bankruptcy is released, but amounts that become payable after bankruptcy commenced are not released by discharge. BANKRUPTCY ACT 1966 - SECTION 82 Debts provable in bankruptcy (1A)Without limiting subsection (1), debts referred to in that subsection include a debt consisting of all or part of a sum that became payable by the bankrupt under a maintenance agreement or maintenance order before the date of the bankruptcy. Section 82 also lists debts that are not provable and will not be released on discharge. This is confirmed by section 153 which provides that non-provable debts are not released upon discharge. These sections include a liability to pay an income contribution to the trustee, debts incurred by way of a fraud and liabilities under maintenance agreements or orders. Section 82 sets out these debts in detail. BANKRUPTCY ACT 1966 - SECTION 153 DISCHARGE & ANNULMENT In most cases the discharged bankrupt will be cooperative with the trustee throughout the period of the bankruptcy and continues to be cooperative. An objection to discharge is generally lodged if they have not been cooperative. Few bankruptcies continue longer than statutory three years. Effect of discharge (2) The discharge of a bankrupt from a bankruptcy does not: (a) release the bankrupt from: (i) a debt on a recognizance; or (ii) a debt with which the bankrupt is chargeable at the suit of the sheriff or other public officer on a bail bond entered into for the appearance of a person prosecuted for an offense against a law of the Commonwealth or of a State or Territory of the Commonwealth; (aa) release the bankrupt from liability to pay an amount to the trustee under subsection 139ZG(1); (b) release the bankrupt from a debt incurred by means of fraud or a fraudulent breach of trust to which he or she was a party or a debt of which he or she has obtained forbearance by fraud; or (c) subject to any order of the Court made under subsection (2A), release the bankrupt from any liability under a maintenance agreement or maintenance order; Note: A discharged bankrupt remains liable under any pecuniary penalty order because such liabilities are not provable in bankruptcy, see subsection 82(3A). A bankrupt should be aware that these types of debts will survive the bankruptcy process and will need to be paid. RIGHTS OF SECURED CREDITORS The debt owed to a secured creditor is not released against the asset secured - only against the bankrupt. Securities in place at the time the bankruptcy commences can be enforced against the secured asset at any time, even after the discharge of the bankrupt. Generally secured assets would have been sold in the three years prior to the date of discharge, but in some cases they may not have been. 51 1 DISCHARGE & ANNULMENT These debts (effectively the shortfalls after the sale of the asset secured) are released from the bankrupt personally at discharge. The secured creditor cannot recover any shortfall suffered after selling the asset secured from the discharged bankrupt. Most securities are exercised and the asset sold before the discharge of the bankrupt and any shortfall would have been proved in the estate, but this is not always the case. Sometimes these assets take longer than three years to realise. If that is the case, the secured creditor will not recover any shortfall. If the secured asset has not been sold before discharge, one important factor is that any amount proved (an estimated shortfall) in the estate is released at discharge. That debt therefore no longer exists and cannot be claimed against the secured asset. This will affect creditors who make large estimates of shortfalls by underestimating the value of the secured asset. The key point to note is that the secured part of their debt will survive a discharge from bankruptcy and the deficiency will be released. Secured creditors should read the other material available on our website and throughout this guide on proving for shortfalls and seek specialist advice before making estimates. OBLIGATIONS OF BUSINESS PARTNERS, GUARANTORS & JOINT DEBT HOLDERS A number of provisions deal with secured debts and proving for shortfalls in the estate. These provisions should be examined before relying on them and are detailed in another guide topic. They are only covered in summary in this section. The discharge of a bankrupt does not release a business partner of the bankrupt from a partnership debt. These debts would normally hold a joint liability under the Partnership Act. These provisions also applies to people that have entered into contracts or arrangements with the bankrupt, have guaranteed a debt of the bankrupt or simply have joint debts with the bankrupt. These people will still be liable for such debts, or the part of the debts that they would have been liable for if the bankrupt had not become a bankrupt. BANKRUPTCY ACT 1966 - SECTION 153 BANKRUPTCY ACT 1966 - SECTION 153 Effect of discharge (3) The discharge of a bankrupt from a bankruptcy does not affect the right of a secured creditor, or any person claiming through or under him or her, to realise or otherwise deal with his or her security: (a) if the secured creditor has not proved in the bankruptcy for any part of the secured debt - for the purpose of obtaining payment of the secured debt; or (b) if the secured creditor has proved in the bankruptcy for part of the secured debt - for the purpose of obtaining payment of the part of the secured debt for which he or she has not proved in the bankruptcy; 52 her security, but not otherwise, the secured debt, or the part of the secured debt, as the case may be, shall be deemed not to have been released by the discharge of the bankrupt. and, for the purposes of enabling the secured creditor or a person claiming through or under him or her so to realise or deal with his or WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU Effect of discharge (4) The discharge of a bankrupt from a bankruptcy does not release from any liability a person who, at the date on which the bankrupt became a bankrupt: (a) was a partner or a co-trustee with the bankrupt or was jointly bound or had made a joint contract with the bankrupt; or (b) was surety or in the nature of a surety for the bankrupt. These joint debts are only released against the discharged bankrupt. They are not released against the other parties to the debt. Creditors can pursue the other parties to a debt, even after the discharge of the bankrupt, and their subsequent release from the debt from the bankrupt. ANNULMENT OF BANKRUPTCY An annulment is a complete undoing of the bankruptcy. It is as if the bankruptcy never happened, apart from the fact that it will still appear on the public record (the NPII) and credit reference databases for some time. For an annulment to occur the bankrupt needs to take one of three actions. Two of these actions require satisfaction of the bankrupt’s debts, at least in part; the third requires an order of the court. 1.ANNULMENT ON PAYMENT OF DEBTS IN FULL A bankruptcy will be annulled if the estate has sufficient monies to pay all of the debts and the costs of the estate in full. If that occurs, the bankrupt is no longer insolvent and there is no need for the bankrupt estate or a release from debts. This usually happens when the bankrupt receives monies from a third party (usually a relative) or when the bankrupt’s assets are sold or refinanced. BANKRUPTCY ACT 1966 - SECTION 153A Annulment on payment of debts (1) If the trustee is satisfied that all the bankrupt’s debts have been paid in full, the bankruptcy is annulled, by force of this subsection, on the date on which the last such payment was made. The debts include all those that have been proved in the bankruptcy, but also interest accrued after the commencement of the bankruptcy on those debts that have interest components. The costs, charges and expenses of the administration of the bankrupt estate includes the remuneration and expenses of the trustee, the asset realisation charge (ARC) payable on the amount necessary to meet all of the debts and costs and if the bankruptcy was commenced by a creditor’s application - the costs of the petitioning creditor. BANKRUPTCY ACT 1966 - SECTION 153A Annulment on payment of debts (1A) In determining whether there has been full payment of a debt that bears interest, the interest must be reckoned up to and including the date on which the debt (including interest) is paid. PERSONAL INSOLVENCY Bankrupts must understand that the extra costs incurred in the estate may be significant and that these debts must also be paid in full in order to obtain this type of annulment. 2. SECTION 73 PROPOSAL A section 73 proposal is made under section 73 of the Bankruptcy Act, hence the name. That section provides a mechanism for bankrupts to propose an alternative to their creditors - a formal arrangement - to the continued bankruptcy. The process is similar to proposing a part X agreement to creditors, but the difference being is that it is initiated during the bankruptcy. The process involves the creditors accepting and receiving a benefit which would not have been available to them in the bankruptcy, in exchange for agreeing to annul the bankruptcy. The annulment occurs on the acceptance of the proposal and the new agreement takes effect. Section 73 proposals are discussed in detail in a separate topic in this publication. Debts of the now ex-bankrupt are not released by operation of the law as there is no discharge. The debts are released only by agreement with the creditors and this usually occurs through a term of the agreement. Therefore the agreement must be completed before any unpaid debts are released. Non-provable debts are also deal with in section 75. BANKRUPTCY ACT 1966 - SECTION 75 Effect of composition or scheme of arrangement (2) The acceptance of a composition or scheme of arrangement does not: (a) except with the consent of the creditor to whom the debt is due, release the bankrupt from a provable debt that would not be released by his or her discharge from bankruptcy; or (b) release any other person from any liability from which he or she would not be released by the discharge of the bankrupt. 3. ANNULMENT BY THE COURT BANKRUPTCY ACT 1966 - SECTION 154 The bankrupt can apply to the court for an order annulling (effectively overturning) the bankruptcy. The court will only entertain an application if they believe that the bankruptcy should never have commenced in the first place. The application may be brought against a sequestration order (a creditor’s petition) or the acceptance of a debtors petition by ITSA. Effect of annulment There can be numerous reasons under which a bankrupt may apply for an annulment and is not detailed here; rather the rights of bankrupts to be able to do so are outlined. BANKRUPTCY ACT 1966 - SECTION 153B Annulment by Court (1) If the Court is satisfied that a sequestration order ought not to have been made or, in the case of a debtor’s petition, that the petition ought not to have been presented or ought not to have been accepted by the Official Receiver, the Court may make an order annulling the bankruptcy. (2) In the case of a debtor’s petition, the order may be made whether or not the bankrupt was insolvent when the petition was presented. (1) If the bankruptcy of a person (in this section called the former bankrupt) is annulled under this Division: (a)all sales and dispositions of property and payments duly made, and all acts done, by the trustee or any person acting under the authority of the trustee or the Court before the annulment are taken to have been validly made or done; and (b) the trustee may apply the property of the former bankrupt still vested in the trustee in payment of the costs, charges and expenses of the administration of the bankruptcy, including the remuneration and expenses of the trustee; and (c) subject to subsections (3), (6) and (7), the remainder (if any) of the property of the former bankrupt still vested in the trustee reverts to the bankrupt. If the assets in the estate are not sufficient to meet the costs and expenses of the trustee, they can collect the balance from the annulled bankrupt. That is in extreme circumstances, the trustee may be able to bankrupt the ex-bankrupt for costs incurred before the bankruptcy was annulled. PROTECTION OF THE TRUSTEE BANKRUPTCY ACT 1966 - SECTION 154 Once the proved debts and costs have been paid under option 1; or a formal section 73 proposal is accepted by creditors under option 2; or the court orders an annulment under option 3; the bankrupt is annulled and the trustee will forward the appropriate notices to ITSA for updating on the NPII. Effect of annulment But what about any actions taken by the trustee before the annulment? The Bankruptcy Act protects the acts performed by the trustee while they are trustee of the bankrupt estate. It does not undo transactions or sales entered into during this period. It also allows the trustee to use assets in the annulled estate to pay any costs and remuneration that remain unpaid at the time of the annulment. DISCHARGE & ANNULMENT 1 (2) If the property of the former bankrupt referred to in paragraph (1) (b) is insufficient to meet the costs, charges and expenses referred to in that paragraph, the amount of the deficiency is a debt due by the former bankrupt to the trustee and is recoverable by the trustee by action against the former bankrupt in a court of competent jurisdiction. 53 Insolvency impacts many stakeholders differently, some of which are explored in this section. WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU 2 RELATED TOPICS PROOFS OF DEBT AND SECURED CREDITORS 56 PUBLIC EXAMINATIONS 57 Meetings of Creditors 59 Dividends62 CGT And Insolvency 69 GST AND INSOLVENCY 72 55 2 PROOFS OF DEBT AND SECURED CREDITORS PROOFS OF DEBT AND SECURED CREDITORS WHAT IS A SECURED CREDITOR? A secured creditor is one that has been granted a security or charge over assets to protect their outstanding debt. This guide deals with how and when a secured creditor may lodge a proof of debt in relation to their debt, or the unsecured part of their debt. WHAT ASSETS FALL UNDER THE SECURITY? Almost any asset may be secured under an appropriate charge, but only assets that are actually secured under a charge will be available to the secured creditor. The security will identify the assets that it covers or will detail the classes of assets that are subject to the security. WHAT CAN THE SECURED CREDITOR DO WITH THE ASSETS SECURED? If the credit agreement with the secured creditor has been breached, they may take control of the assets covered by their charge. They are not entitled to take control over assets not covered by their charge. In the majority of cases, the secured creditor will sell the assets and keep sufficient monies to satisfy their secured debts and costs of enforcing their charge. They will refund the balance to the debtor. HOW IS THE SECURED CREDITOR AFFECTED IF THE DEBTOR IS IN LIQUIDATION OR BANKRUPTCY? The rights of a secured creditor are usually not affected by the appointment of a liquidator or bankruptcy trustee. But there are certain times when a security will be unenforceable. WHAT IF THERE IS A SHORTFALL AFTER THE SALE OF THE ASSETS? Any shortfall after the sale of secured assets under the charge can be quantified and proved in the estate. The secured creditor may simply lodge a proof of debt for the shortfall in the appropriate insolvent estate and participate in any dividend with other creditors. DO THE ASSETS HAVE TO BE SOLD BEFORE THEY CAN LODGE A PROOF OF DEBT? No. The secured creditor may lodge a proof of debt for the estimated shortfall by estimating the value of the unsold secured 56 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU assets and deducting that amount from the amount owed. A secured creditor will then be entitled to vote on and receive dividends for that estimated shortfall, but in exercising their rights without due consideration of the consequences it may backfire unfavourably. ESTIMATING A SHORTFALL To be able to lodge a proof of debt for an estimated shortfall, the secured creditor will have to estimate the value of the assets held under the security. The estimated value is declared on the proof of debt form along with the full amount of the debt and the calculated shortfall. The secured creditor may consider creating a safety net to ensure maximum return by using a low estimate of the value of the remaining assets - making the shortfall as large as possible, so the shortfall and any dividend paid on that shortfall is high. But there are consequences for placing a deliberately low estimate on secured assets and these are outlined below. REDEMPTION OF SECURITY Both liquidators and bankruptcy trustees have a right to redeem securities by paying out the estimated value as stated on the secured creditor’s proof of debt. So when a secured creditor undervalues the secured assets to make their shortfall large, the liquidator or trustee may pay them that low amount and release the asset from the charge. Secured creditors will lose their right to the true value of the asset and will only be able to prove for the shortfall. ENFORCED SALE OF ASSET If the liquidator or trustee does not or cannot redeem the security by paying out the amount estimated, they may require that the asset be placed for sale. The sale will realise the asset and quantify any shortfall owing to the secured creditor. AMENDING THE ESTIMATE BY REQUEST The value of the asset secured may alter over time for many reasons. If this occurs, the secured creditor may apply to the liquidator, trustee or the court to amend the estimated value of the asset on their proof of debt. If the liquidator, trustee or court is satisfied that the original value was made under a genuine error or the value has changed since the estimate was made, they may allow the creditor to amend the estimate. AMENDING THE ESTIMATE BY SALE If the asset is sold after the estimate is made, the amount realised in the sale is automatically exchanged for the estimate made by the secured creditor. HOW DOES AN AMENDMENT OF THE VALUE AFFECT DIVIDENDS PAID BEFORE THE AMENDMENT? A change in the estimated value may happen after a dividend has been paid to the secured creditor. Increasing the value of an estimate (lowering the shortfall and therefore reducing the amount of the proof of debt) will mean that the secured creditor would have received too much in their dividend and they will have to pay back the excess amount. Lowering the value of an estimate (raising the shortfall and the amount of the proof of debt) will entitle the creditor to a further (catch up) dividend - if further dividends are paid. DEEMED SURRENDERING OF SECURITY A secured creditor may choose to intentionally surrender their security and prove for the whole amount of their debt in the estate. Secured creditors may also be deemed to have surrendered their security if they vote for the whole of their debt at a meeting of creditors (the exception being voluntary administration meetings). If the security is deemed surrendered, they lose all rights to the assets secured under the charge. Secured creditors should exercise care when voting at meetings they only vote for their shortfall (estimated or actual). RELATED TOPICS 2 PUBLIC EXAMINATIONS PUBLIC EXAMINATIONS WHAT IS A PUBLIC EXAMINATION? A public examination is the common name given to the process of an external administrator formally examining various parties in an insolvent estate. Both the Corporations Act and the Bankruptcy Act have provisions to conduct such examinations. Though the name is not technically correct in all circumstances, we shall use that description for all types of examinations in under both Acts. WHY HOLD A PUBLIC EXAMINATION? There are a number of reasons, including: (i)Getting information from uncooperative persons; (ii)Obtaining documentation that would otherwise be unavailable; (iii)Obtaining detailed explanations on difficult matters in the estate; (iv)Uncovering offences; (v)Determining whether there is a claim that may be made; (vi)Obtaining details of defences to claims without having to commence proceedings; and (vii)Generally gathering information. WHO MAY APPLY FOR AN EXAMINATION? An ‘eligible applicant’ may apply for an examination under the Corporations Act. An eligible applicant is the liquidator or provisional liquidator; an administrator or administrator of a deed of company arrangement; the Australian Securities and Investment Commission (ASIC) or someone authorised by ASIC. ASIC will authorise people to make the application in limited circumstances. Under the Bankruptcy Act, the Official Receiver may commence the public examination of parties under section 77C of the Act. This is usually done at the request of the trustee controlling the estate. The trustee, the Official Receiver or any creditor of the bankrupt may apply to the Federal Court for an examination under section 81 of the Bankruptcy Act. WHERE ARE EXAMINATIONS HELD? Under the Bankruptcy Act: (a)Section 81 examination are held in the Federal Court or Federal magistrates Court; and (b)Section 77C examinations are held without all of the formality but still under oath at the offices of the Official Receiver or any other place designated by the Official Receiver. These two sections give some diversity under the Bankruptcy Act that is not available under the Corporations Act. WHO MAY BE EXAMINED? Orders for the examination of directors and officers of the company in theory must be given by the court. Section 596B gives the court discretion to order the examination of other people. Anyone can be summoned to appear to answer questions and to produce records to the court in an examination under the Corporations Act. To make the order the court will have to be shown that the person has information on the ‘examinable affairs’ of the company. The Bankruptcy Act provides for an examination of the bankrupt and other ‘examinable persons’. Examinable persons include directors of associated entities, spouses of the bankrupt, people in possession of records, creditors of the bankrupt and debtors of the bankrupt, accountants and solicitors. Essentially, anyone who has advised or dealt with the bankrupt, or may have information on dealings with the bankrupt, may be examined. WHAT ARE “EXAMINABLE AFFAIRS”? Section 9 of the Corporations Act defines examinable affairs as follows; in relation to a company means: (a) the promotion, formation, management, administration or winding up of the corporation; or (b) any other affairs of the corporation (including anything that is included in the corporation’s affairs because of section 53); or (c) t he business affairs of a connected entity of the corporation, in so far as they are, or appear to be, relevant to the corporation or to anything that is included in the corporation’s examinable affairs because of paragraph (a) or (b). The same requirement exists in the Bankruptcy Act - only people that have information on the examinable affairs may be examined. Examinable affairs in relation to a bankrupt means: (a)The person’s dealings, transactions, property and affairs; and (b)The financial affairs of an associated entity of the person, in so far as they are, or appear to be, relevant to the person or to any of his or her conduct, dealings, transactions, property and affairs. Orders for examinations under the Corporations Act are generally given in the Supreme or Federal Courts, but the conduct of the examinations is usually passed to the local magistrates or similar courts. Even though they are usually held in the lower court, the same rules and enforcement powers apply as they would for a Supreme or Federal Court matter. 57 PUBLIC EXAMINATIONS 2 WHO ASKS THE QUESTIONS AT THE EXAMINATION? CAN A WITNESS BE REPRESENTED? It is common for a solicitor or barrister to be engaged to ask the questions, though a liquidator or trustee may do so. Barristers are often used due to their knowledge of the court process and their skill in examining and cross examining witnesses. Witnesses have the right to be represented by counsel or a solicitor, but their role is very limited compared to their role in a trial, as there is no case to prove or defend. The Bankruptcy Act allows for counsel or a solicitor to reexamine the witness. They will generally only ask questions to clarify a point, and they cannot call witnesses themselves. Interestingly under the Bankruptcy Act any creditor may attend the examination and put questions to any witness regardless of whether they applied for the examination or not. They simply need to attend and request the right to ask questions. WHAT TYPE OF QUESTIONS MAY BE ASKED? Appropriate questions are limited to the examinable affairs of the insolvent company or bankrupt. This definition has been stretched over the years to include the witness’s ability to meet the claims that may be made against them and issues like the professional indemnity insurance cover that may cover those claims. At times, the person asking the questions may have to convince the court that the question should be allowed. WHAT IF THE WITNESS LIES? All public examinations are conducted under oath or affirmation. That is, if the witness does not tell the truth, they may be charged with perjury. CAN THE WITNESS REFUSE TO ANSWER QUESTIONS? No. There is no right to refuse to answer questions. However, if the witness formally objects to any question as it may be incriminating to them, the answer may not be used against them in a later offence prosecution. But, they still must answer the question fully and truthfully. In reality, this policy of objections does not usually concern the liquidator or trustee, as they do not initiate offence prosecutions and therefore will not be using the information for that purpose. The information obtained is generally used by the liquidator or trustee for commercial recovery actions. WHAT IF SOMEONE DOES NOT ATTEND THE EXAMINATION WHEN ORDERED TO DO SO? Examinations under the Corporations Act and section 81 of the Bankruptcy Act are held in court and the witnesses are formally summonsed to the court. Non-appearance under a summons from the court may, and often does, lead to a warrant for the arrest of the witness. The courts will generally give the witness the opportunity to comply with the summons before issuing that warrant. Usually the registrar of the court will attempt to locate the witness and instruct them to attend before the court within a short time thereafter. It is not unusual for an arrest warrant to be then issued if they do not attend at this stage. CAN ANYONE WATCH THE EXAMINATION? Anyone can attend and watch public examinations that are held in open court. Rarely the court will order a closed session. The general public cannot however take part in the examination process. ‘By T he Way...’ r the Bankruptcy There is no obligation unde ll his or he r employe r Act for a bankrupt to te nkrupt. that they have be come ba 58 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU RELATED TOPICS 2 Meetings of Creditors Meetings of Creditors WHY ARE MEETINGS OF CREDITORS CALLED? Meetings are held so that creditors can find out the status of an estate, ask questions, give suggestions about how the file is handled and approve the appointee’s remuneration. Both the Corporations Act and the Bankruptcy Act have rules about how and when meetings are to be called and run, as well as how issues are to be decided at the meeting. WHAT ARE THE BASIC STEPS? The meeting process is similar to most other organised meetings of clubs, associations or corporations. There is a logical order to the events surrounding the meeting and certain things must be done before, during and after the meeting. 1.Creditors should receive adequate notice of the time and place of the meeting. They should be given a report that contains all of the information needed for them to make informed decisions on the matters to be discussed and resolutions being put to that meeting. 2. The meeting should be run according to a formal agenda set out in the notice of meeting. 3. The meeting will be chaired either by a person nominated by those attending (in the case of meetings under the Bankruptcy Act), or subject to limited exceptions the person required by the provisions of the Corporations Act. 4. Resolutions will be decided by a vote of those creditors attending the meeting and who are entitled to vote. Resolutions are determined in favour of the prescribed majority. What constitutes a majority may differ according to the type of meeting or the type of resolution sought. 5. The participants may adjourn the meeting by putting forward a motion to that effect and having the resolution ‘passed’ by the creditors. 6. All matters during a meeting will be recorded as minutes of the meeting and distributed within the prescribed time. WHO MAY CALL A MEETING OF CREDITORS? External administrators must call meetings of creditors. Creditors cannot organise meetings that have legal effect in the estate, but there is nothing prohibiting creditors and other interested parties having informal meetings themselves. External administrators may call meetings at any time, but must call meetings when either: (a)the Act dictates they do so; or (b) when the prescribed number of creditors request that they do so. For example section 64 of the Bankruptcy Act provides that a meeting must be called when requested by at least 25% of the value of creditors, or when creditors have lodged sufficient security for the costs of the meeting. WHAT PERIOD OF NOTICE MUST BE GIVEN? The period of notice is prescribed by the Acts and varies dependent upon the type of meeting being called. It is usually about 14 days but some meetings, particularly voluntary administration meetings, have shorter notice periods. WHAT SHOULD BE SENT TO CREDITORS WHEN A MEETING IS CALLED? The following should be sent to creditors: (i)A notice calling the meeting and setting out the agenda for the meeting; (ii)Particulars of any resolutions that are to be dealt with at that meeting and sufficient information in order to make an informed decision on the resolution; Creditors should obtain any missing documents from the external administrator who is calling the meeting. WILL A REPORT TO CREDITORS BE ISSUED? A report from the external administrator will generally accompany the notice of meeting and the other documents. The report should outline the current position of the estate and the investigations undertaken contain details about further examinations and the potential actions to be taken by the external administrator, all relevant information and recommendations on any decisions that are to be made at the meeting. DO CREDITORS NEED TO ATTEND MEETINGS? No. Creditors do not lose any rights to prove for dividends if they do not attend meetings. However they will not have a say in the conduct of the estate nor on any resolution. It is prudent to encourage creditors to at least attend by proxy to ensure that a quorum is formed and the meeting can proceed without adjournment. WHERE AND WHEN ARE MEETINGS HELD? Meetings should be held at a time and place convenient to the majority of the creditors. A convenient time is generally during business hours on a normal business day. A convenient place is generally in the town or city centre where a majority in number of the creditors conduct their business. (iii)A proof of debt form; and (iv)A proxy form and possibly a voting slip. 59 2 Meetings of Creditors WHO RUNS THE MEETING? A chairperson or a president runs the meeting. The chairperson for most meetings under the Corporations Act is the convener of the meeting (the insolvency practitioner) or someone delegated to that role. A president must be chosen to control meetings called under the Bankruptcy Act. The president can be anyone at that meeting, but is usually the trustee or some person associated with the trustee as they have experience in conducting meetings. Some of the actions taken and decisions made may not be enforceable if they are not handled in the technically correct manner, so it is beneficial to have an experienced person control the meeting. IS THERE AN AGENDA? Yes. Only the matters on the agenda can be decided upon at the meeting. The agenda is generally set by the relevant Act but may be amended. The agenda should be set out in the notice of meeting issued to creditors. WHEN SHOULD CREDITORS LODGE THEIR CLAIMS? Creditors should lodge a claim prior to or at the meeting otherwise creditors will not be able to vote at the meeting, as only creditors who have proved that they are owed creditors in the estate may vote. Creditors should follow these rules: (i)Attach copies of invoices or other documentation detailing the amount owed and how it arose, or indicate that these records are available if required to prove the debt; (ii)Submit a claim before or at the commencement of a meeting and have it noted on the register of attendance; and (iii)If the claim is not admitted for any reason, make sure an objection is noted in the minutes. 60 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU DO CREDITORS HAVE TO LODGE A PROOF OF DEBT TO BE ABLE TO VOTE? For meetings under the Bankruptcy Act: No - section 64D provides that a written statement setting out the claim is advisable, but it is not necessary for a proof of debt to be lodged. For meetings under the Corporations Act, not necessarily. Unless required, a statement of claim appears to be sufficient. To eliminate all doubt, it is recommended that creditors lodge proofs of debt. HOW CAN CREDITORS ATTEND THE MEETING? Creditors will have to decide how to attend a meeting. They may attend in person, by proxy or attorney, or by participating over the phone. The distinction between a proxy and an attorney is that a proxy will usually only vote in accordance with instructions and directions given to him. An attorney can decide how to vote, and can respond to changing circumstances during a meeting. WHO CAN BE A PROXY? HOW IS A PROOF OF DEBT ADMITTED? Almost anyone over the age of 18 can act as a proxy. The external administrator will decide whether or not to admit the proofs of debt or claim for voting by examining the material attached to the proof of debt and comparing it to the information contained in the company records. The decision is final at the meeting but can be challenged in the court after the meeting has been held. If such a challenge is successful, the outcome of the meeting itself may be challenged if the use or otherwise of that claim would have definitely changed the outcome of the meeting. HOW ARE RESOLUTIONS DECIDED? If a claim is rejected, the creditor should have a statement read into the minutes disagreeing with the decision and reserving the right to challenge the decision in an appropriate forum. At this point however, there is nothing more that the creditor can do to influence the meeting, but they may remain in attendance until the meeting is closed. CAN CREDITORS ASK QUESTIONS? Yes. A meeting of creditors is a forum for creditors to ask questions. Questions should always be addressed to the chairperson or president, who in turn will put the question directly to the relevant person if required. Alternatively, creditors may ask questions of the chairperson, trustee or liquidator directly. A vote of creditors is called a resolution - the creditors resolving a proposal or motion. Most resolutions are ordinary resolutions, and are resolved or defeated by a simple majority. The Corporations Act provides for a resolution to be firstly taken ‘on the voices’, which is a simple majority in number. If the resolution cannot be decided on the voices or a creditor requests one, the resolution will be taken by a poll. Similar voting provisions occur in the Bankruptcy Act, but the Bankruptcy Act requires a simple majority in value - not number. The required majority for an ordinary resolution by a poll is more than 50% in number and 50% in value both voting for the resolution. There are also provisions for some proposals at meetings to require a ‘special resolution’, being more than 50% in number and 75% in value. These resolutions are usually done in writing on voting slips. RELATED TOPICS CAN RESOLUTIONS BE PASSED WITHOUT A PHYSICAL MEETING? The Bankruptcy Act allows single resolutions to be passed by creditors without a meeting being called. This is known as a virtual meeting. Voting is done through the mail with creditors indicating their acceptance or rejection of the motion, or they can object to the vote being taken in that format and request a meeting to be called to decide the matter. There is no corresponding provision in the Corporations Act currently. Though there are no corresponding virtual meeting provisions in the Corporations Act, effectively meetings can be held with only proxies and special proxies being held in the name of the chairman, and with no creditor physically attending the meeting. The result is one or more resolutions passed without a ‘physical’ meeting of people. WHO WILL KEEP THE MINUTES? CAN MEETINGS BE ADJOURNED? Minutes of the meeting called under the Corporations Act will be lodged with the Australian Securities & Investment Commission (ASIC) within the appropriate time period. Worrells will also lodge the minutes on the estate’s file information page on our website. Meetings under the Bankruptcy Act are not formally lodged with Insolvency and Trustee Service Australia (ITSA), but will also be lodged on the estate’s file information page. Yes. Anyone may propose a resolution for an adjournment of the meeting. At times the chairperson or president may adjourn the meeting to better consider proofs of debt and voting rights. The type of meeting will determine the maximum time period allowed for any adjournment. Meetings of Creditors 2 Minutes are kept by a minutes secretary. The Corporations Regulations provide that the chairperson must cause minutes to be filed and they will determine who will be the minutes secretary. The Bankruptcy Act requires creditors to appoint the minutes secretary. It will usually be a staff member of the trustee. ‘ By T he W ay...’ De bts tha t are p‘ rovable ’ in a bankrupt cy and d on discha rge include taxation de bts, prov ided that t he outstand ing re turns are lodged and asse ss ed be fore d ischarge. Asse ssmen ts issued a fte r bankr uptcy for pre -bankru ptcy income tax de bts can still be colle cte d from a dis charged ba nkrupt. ge t re lease 61 2 Dividends Dividends INTRODUCTION Dividends are the logical end to most insolvency appointments. But they can cause a delay in finalising the estate due to the need to follow the legal process, adhere to statutory time limits and conduct the examinations necessary to admit or reject proofs of debt as appropriate. This guide covers those parts of the Corporations Act and the Bankruptcy Act that relate to the payment of dividends from insolvent estates. The minimum time periods to pay dividends are set out in the Acts. If there are no complications, a corporate insolvency dividend will take about one month to distribute and a personal insolvency dividend will take about two months to distribute. The difference is due to a statutory time period stipulated under the Bankruptcy Act. The tasks that commonly give rise to complications and time delays are the admittance of proofs of debt. These may defer the dividend for some time, especially if the rejection of a proof of debt is appealed in the courts. Dividends in Detail The payment of dividends is often the only real tangible output from insolvent estates, though often even this result is not possible. Sometimes there are simply no assets to realise and no funds to distribute. Both the Corporations Act and the Bankruptcy Act set out the obligation to pay dividends as quickly as practical. The Corporations Regulations say: REGULATION 5.6.67 Declaration and distribution of dividend (1) The liquidator must, as soon as practicable, declare and distribute a dividend among the creditors whose debts or claims have been admitted. (2) The liquidator must distribute as dividend all money in hand except enough: (a) to meet the costs of administration; or (b) to give effect to the provisions of the Act. The Bankruptcy Act obligations are at section 140. 62 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU BANKRUPTCY ACT 1966 - SECTION 140 Declaration and distribution of dividends (1) The trustee of the estate of a bankrupt shall, subject to this section, with all convenient speed, declare and distribute dividends amongst the creditors who have proved their debts. (2) Subject to the retention of such sums as are necessary to meet the costs of administration or to give effect to the provisions of this Act, the trustee shall distribute as dividend all moneys in hand. In practice the external administrator will have to withhold sufficient monies to complete the remaining work required in the estate. They will also determine the most appropriate time to pay dividends given further anticipated realizations - if any - and the costs of paying multiple smaller dividends. The external administrator cannot just pay out money to anyone in any manner. Dividends must be declared in accordance with the steps set out in the relevant Act and dividends must be paid to creditors in a certain order under various priorities as set out in those Acts. STEPS IN PAYING DIVIDENDS The process of declaring and paying dividends under both Acts is very similar. There are four basic steps that must be followed to pay a dividend regardless of which Act applies. These steps are: 1.Calling for proofs of debt - giving every known creditor the opportunity to lodge a claim (proof of debt) in the estate and participate in the dividend distribution. 2.Admitting proofs of debt - verifying that the debt is proper to the satisfaction of the external administrator. 3.Rejecting proofs of debt where appropriate - to ensure that only legitimate creditors of the estate participate in the dividend distribution. 4.Paying the dividend distributing the funds. 1. C ALLING FOR PROOFS OF DEBT All creditors must be given the opportunity to lodge their claim in the form of a proof of debt. So the first step is calling for proofs of debt from all known creditors. A proof of debt is a formal document used to make a claim in the estate, which demonstrates that a debt exists and sets out the particulars of the debt. Without sufficient proof that the debt exists, it will not be admitted for the amount stated, or potentially not at all. Proofs of debt forms are specific to the Corporations Act and the Bankruptcy Act requirements. The correct form needs to be used in order to participate in a dividend. The appointee may not be able to admit claims that are not sufficiently detailed on the correct form, which may result in the creditor being excluded from the dividend. Creditors can lodge proofs of debt at any stage in the administration; they do not need to wait until a dividend is called. In theory once a creditor has lodged a proof of debt, they need not lodge another. But creditors should ensure that their claim has been lodged and appears in any list of proof of debts received. If they are in doubt, they should lodge another. RELATED TOPICS 2 The appointee must formally notify all known or potential creditors of the intended dividend distribution and request that proofs of debt be lodged by a certain date. The approach under the Acts is similar, but the process is slightly different. The period that must be given to lodge proofs of debt under the Corporations Act is “not less than 21 days”. Under the Bankruptcy Act it is defined as a ‘reasonable period’. Usually the 21 day period is used under the Bankruptcy Act on the basis that, if it is deemed reasonable under the Corporations Acts it should therefore be reasonable under the Bankruptcy Act. The Corporations Act regulation states: REGULATION 5.6.65 Liquidator to give notice of intention to declare a dividend (2) A notice in accordance with sub regulation (1) must specify a date, not less than 21 days after the date of the notice, on or before which formal proof, in accordance with Form 535 or 536, of a debt or claim must be submitted to participate in the distribution. A relevant provision in the Bankruptcy Act is: BANKRUPTCY ACT 1966 - SECTION 140 Declaration and distribution of dividends (3) Before declaring the first dividend, the trustee must give written notice of the trustee’s intention to declare the dividend to anyone the trustee knows of who claims, or might claim, to be a creditor but has not lodged a proof of debt. (4) The trustee shall, in a notice published or sent in pursuance of subsection (3), specify a reasonable period within which creditors may lodge their proofs of debts. It is important to have definite time periods in which to lodge claims so that the payment of the dividend is not delayed or challenged due to the lodgement of claims as cheques are being drawn. The cut-off date is final and the provisions stipulate both creditor’s and appointee’s rights if a proof of debt is not lodged within the time period. Notices to be Issued The Corporations Act requires two notices to be issued to notify creditors of a dividend. These are: 1. An advertisement on ASIC’s notification page; and 2. A Corporations Form 547 or 548 posted to the creditors that have not already lodged proofs of debt. These notices are usually posted to all creditors regardless of whether they have lodged a proof of debt or not. This provides an opportunity to bring all creditors up to date with the conduct of the file and allows creditors to amend their proofs of debt if necessary. These notices will usually contain a list of proofs of debt received to date so that creditors can check whether their proof of debt has been received. Regulation 5.6.65 of the Corporations Act states: REGULATION 5.6.65 Liquidator to give notice of intention to declare a dividend (1) The liquidator must give notice of his or her intention to declare a dividend not more than 2 months before the intended date: (a) by publishing a notice in the Gazette in accordance with Form 546; and (b) in writing, in accordance with Form 547 or, for a final dividend, in accordance with Form 548, to any person whose debt or claim has not been admitted and who: (i) for a winding up by the Court - is shown as a creditor in the report on the affairs of the company under subsection 475 (1) of the Corporations Act; or (ii) for a members’ voluntary winding up - appears in the company’s records to be a creditor; or (iii) for a creditors’ voluntary winding up - is shown as a creditor in the list of creditors prepared in accordance with subparagraph 497 (2) (b) (ii) of the Corporations Act; or (iv) to the knowledge of the liquidator claims to be, or might claim to be, a creditor of the company. The Bankruptcy Act does not require any advertising of the dividend, though it is sometimes done. It only requires that a notice is sent to all known creditors who have not lodged proofs of debt. Again common practice is to send a notice to all creditors and provide an update on the estate. Dividends Time periods for calling for proofs of debt Occasionally a trustee will advertise a personal insolvency dividend when they suspect that there may be creditors that have not been disclosed; particularly when a statement of affairs has not been lodged and an application will have to be made to the court to pay the dividend. BANKRUPTCY ACT 1966 - SECTION 140 Declaration and distribution of dividends (3) Before declaring the first dividend, the trustee must give written notice of the trustee’s intention to declare the dividend to anyone the trustee knows of who claims, or might claim, to be a creditor but has not lodged a proof of debt. Dates for Payment No dividend may be paid until the lodgement period for proofs of debt has expired and all proofs of debt have been admitted or rejected. That is, the cheques will not be drawn within that 21 day or ‘reasonable’ period. Under the Corporations Act, the time period for issuing the initial notice calling for proofs of debt to the intended date of payment can be no more than two months. It is the intended date of payment - the date that the dividend may be paid without any complications or delays - that is relevant to this section, not the actual date of payment. Payment may actually be made after that date due to the admittance and rejection process. REGULATION 5.6.65 Liquidator to give notice of intention to declare a dividend (1) The liquidator must give notice of his or her intention to declare a dividend not more than 2 months before the intended date: 63 2 Dividends If the dividend is postponed past the intended date, the liquidator may have to re-advertise the notice declaring the new intended date. No time limit has been put into the Act, so a delay of a few days to admit proofs of debt would not necessarily be considered a postponement. If it was decided that this dividend would be postponed for a few months, then advertising would be required. REGULATION 5.6.69 Postponement of declaration If the liquidator postpones the declaration of a dividend past the date shown for that purpose in the notice published in the Gazette, the liquidator must publish a further notice in the Gazette, in accordance with Form 546, of the liquidator’s intention to declare a dividend. The Bankruptcy Act does not set a maximum time period after the intended date of declaring a dividend, but says that dividends must not be paid before 21 days after the lodgement date for proofs of debt. Therefore the trustee will have to wait about 21 days to receive proofs of debt, and without further complication, wait another 21 days after that before they can issue dividend cheques. NON-LODGEMENT OF PROOF OF DEBT There has to be a mechanism to close the proof of debt register at a certain time so that the dividend can be paid without being challenged. Both Acts say that if creditors do not lodge their proofs of debt within the specific period, they will be excluded from that dividend. If there are sufficient funds to pay a further dividend at a later date, these creditors may lodge their proofs of debt and be paid the original dividend they missed out on (a catch-up dividend), and then participate in the next dividend. If there are not sufficient funds available to pay a second dividend (a second dividend is never declared), they will not receive a dividend at all. Hence it is imperative for creditors to lodge their proofs of debt before the expiry of the initial lodgement period. The Corporations Act specifically states that creditors who do not lodge their proofs of debt in time are excluded from the current dividend. REGULATION 5.6.65 Liquidator to give notice of intention to declare a dividend BANKRUPTCY ACT 1966 - SECTION 140 (3) Subject to regulation 5.6.68, a person: Declaration and distribution of dividends (a) who claims to be a creditor; and (7) Where the trustee has sent a notice in pursuance of subsection (3) or (5) of this section in relation to the declaration of a dividend, the trustee shall not declare the dividend until after the expiration of 21 days after the expiration of the period specified in the notice. (b) who does not submit a formal proof of a debt or claim on or before the date specified in the notice given under subregulation (1); is excluded from participating in the distribution to which that notice relates. 64 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU The rights of the creditors to receive a dividend on any proof of debt lodged too late to participate in the original dividend are set out in regulation 5.6.68. They essentially allow a creditor to receive a ‘catch up’ dividend before the next dividend is paid. Of course if there are insufficient monies and therefore no more dividends, the creditor will receive nothing. REGULATION 5.6.68 Rights of creditor who has not proved debt before declaration of dividend (1) If: (a) a creditor’s debt or claim has not been admitted before the declaration of a dividend; and (b) the debt or claim is admitted; the creditor is entitled to be paid dividends that the creditor has failed to receive, out of any available money for the time being in the hands of the liquidator, before that money is applied to the payment of a further dividend. (2) A creditor is not entitled to disturb the distribution of a dividend declared before the creditor’s debt or claim was admitted. The Bankruptcy Act sets these provisions out in section 144 and they are essentially the same as the provisions in the Corporations Act. BANKRUPTCY ACT 1966 - SECTION 144 Right of creditor who has not proved debt before declaration of dividend A creditor who has not proved his or her debt before the declaration of a dividend is entitled to be paid, out of any available money for the time being in the hands of the trustee, dividends that he or she has failed to receive before that money is applied to the payment of a future dividend, but he or she is not entitled to disturb the distribution of a dividend declared before he or she proved his or her debt. 2. ADMITTING PROOFS OF DEBT Before a dividend can be paid on any proof of debt, it must be admitted. This is a different process to having a proof of debt admitted for voting purposes at a meeting of creditors. It is not always the case that proofs of debt admitted at meetings will be admitted for dividends as the burden of proof is different. The time available to consider a proof of debt is also different in both cases, as some proofs of debt are lodged at the start of the meeting when there is no time for appointees to properly consider the claim. Such reviews may be necessary for admittance for dividends. RELATED TOPICS 2 Regulation 5.6.63 of the Corporations Act deals with the admittance of proofs of debt for corporate dividends. REGULATION 5.6.63 Dividend payable only on admission of a debt or claim A dividend in the winding up of the affairs of a company may be paid only to a creditor whose debt or claim has been admitted by the liquidator at the date of the distribution of dividends. Section 83 is the corresponding provision in the Bankruptcy Act. Liquidators have to review proofs of debt within 14 days after the lodgement date and make a decision on whether to admit or reject the claim, or seek further information. ASIC may grant an extension to that time period if required. In cases when hundreds of proofs of debt are received at one time, that extension is likely to be needed. REGULATION 5.6.66 Time allowed for dealing with formal proof of debt or claim (1) If the liquidator has given notice in accordance with subregulation 5.6.65 (1), the liquidator must: (1) The trustee shall examine each proof of debt and the grounds of the debt sought to be proved and, subject to the power of the Court to extend the time, shall, not later than 14 days after the expiration of the period specified in the notice of intention to declare a dividend as the period within which creditors may lodge their proofs of debt, either: (b) within such further period as ASIC allows; (c) reject it in whole; or Debt not to be considered proved until admitted (c) before the end of that period: For the purposes of this Act, a creditor shall be taken not to have proved a debt until a proof of debt lodged by him or her in respect of that debt has been admitted. (ii) reject it; or The trustee or liquidator will only have to assess the material attached to the proof of debt and information in the available records. Creditors should ensure that they attach copies of all appropriate documentation (invoices and statements) to their proof of debt when it is initially lodged. They should keep the originals themselves, in case they are needed later or the copies are lost. Admission or rejection of proofs (a) admit the proof of debt in whole; in writing: The bottom line is that creditors must provide sufficient proof to show that the claim should be admitted for dividends. It is not up to the liquidator or trustee to try to locate sufficient information. BANKRUPTCY ACT 1966 - SECTION 102 (a) within 14 days after the date shown in the notice; or BANKRUPTCY ACT 1966 SECTION 83 The trustee or liquidator will make an assessment of the material provided by the creditor and decide on the correctness or validity and the amount of the debt. If they believe that all or part of the debt is not fully proved, they will seek further clarification and material from the creditor. If they cannot obtain that clarification, they may reject the proof of debt in full or in part. The Bankruptcy Act also sets a 14 day time period for the trustee to admit, reject or otherwise deal with the claim. (i) admit a formal proof of debt or claim received by the liquidator; or (iii) admit part of it and reject part of it; or (iv) require further evidence in support of it; and (d) give notice of the liquidator’s decision to the creditor who submitted the proof. Dividends The important point to make here is that the burden of proving the existence and amount of a claim lies on the creditor making the claim. The onus is not on the appointee to disprove a claim. (b) admit it in part and reject it in part; (d) require further evidence in support of it. In that time period, the trustee will have three options: 1.To admit the proof of debt, which can be done if sufficient information is attached to the proof; 2.To reject the proof of debt, if there is no doubt that the debt is either fully or partially not provable; or 3.To request further information. (4) If the liquidator has admitted a formal proof of debt or claim, the notice of dividend is sufficient notice of the admission. The Bankruptcy Act provides that a dividend cannot be paid before 21 days after the lodgement date. This time is used to examine the proofs of debt that have been lodged. BANKRUPTCY ACT 1966 - SECTION 140 Declaration and distribution of dividends (7) Where the trustee has sent a notice in pursuance of subsection (3) or (5) of this section in relation to the declaration of a dividend, the trustee shall not declare the dividend until after the expiration of 21 days after the expiration of the period specified in the notice. 65 2 Dividends 3. REJECTING PROOFS OF DEBT The onus of proving that they have a valid claim lies with the creditor. If the material attached to the proof of debt does not sufficiently prove that a debt exists in the stated amount, the practitioner will not be able to admit the claim or some part of the claim. Two options are then available: 1.Ask the creditor for further information to make a better determination (which is the usual case); or 2.Reject the proof of debt in full or in part (usually done if better information is not forthcoming). Rejecting a proof of debt is done when the creditor either will not or cannot provide sufficient information to prove that they have a valid claim in the stated amount. The notice of rejection will set out the particulars of the claim that are rejected and the reasons for rejection. The creditor has a right to appeal the rejection of their proof of debt and have the court decide whether the proof should be admitted or not. Having the appeal heard by the court may delay the payment of a dividend. Unfortunately, the time period for this process is governed by the availability of the courts. The Corporations Act contains these provisions in regulation 5.6.54. CORPORATIONS REGULATIONS - REGULATION 5.6.54 Grounds of rejection and notice to creditor (1) Within 7 days after the liquidator has rejected all or part of a formal proof of debt or claim, the liquidator must: (a) notify the creditor of the grounds for that rejection in accordance with Form 537; and (b) give notice to the creditor at the same time: (i) that the creditor may appeal to the Court against the rejection within the time specified in the notice, being not less than 14 days after service of the notice, or such further period as the Court allows; and 66 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU (ii) that unless the creditor appeals in accordance with subparagraph (i), the amount of his or her debt or claim will be assessed in accordance with the liquidator’s endorsement on the creditor’s proof. The Bankruptcy Act contains these provisions in section 102. BANKRUPTCY ACT 1966 - SECTION 102 Admission or rejection of proofs (1) The trustee shall examine each proof of debt and the grounds of the debt sought to be proved and, subject to the power of the Court to extend the time, shall, not later than 14 days after the expiration of the period specified in the notice of intention to declare a dividend as the period within which creditors may lodge their proofs of debt, either: (a) admit the proof of debt in whole; (b) admit it in part and reject it in part; (c) reject it in whole; or (d) require further evidence in support of it. (2) Where the trustee rejects a proof of debt in whole or in part, he or she shall inform the creditor by whom it was lodged, in writing, of the grounds of the rejection. APPEALS AGAINST TRUSTEE’S DECISION Creditors have the right to have the decision to reject their proof of debt reviewed by the court. Creditors’ rights are set out in Regulation 5.6.54 of the Corporations Act and Section 104 of the Bankruptcy Act. Even if a proof of debt is rejected, the liquidator or trustee may amend that decision upon the provision of better information, if the information is provided within the required time period. However, if a proof of debt is formally rejected, creditors must be aware that they have a limited time period to apply to the court for adjudication. Even if they are furnishing better information to the liquidator or trustee, they must be mindful that this time period is expiring. The court may allow an application after the time period expires, but creditors should not assume that the court will do so. CORPORATIONS REGULATIONS - REGULATION 5.6.54 Grounds of rejection and notice to creditor (2) A person may appeal against the rejection of a formal proof of debt or claim within: (a) the time specified in the notice of the grounds of rejection; or (b) if the Court allows — any further period. (3) The Court may extend the time for filing an appeal under subregulation (2), even if the period specified in the notice has expired. There are strict time limits for seeking such relief and these will be set out in the notice of rejection. If the application for the review of the decision is not made within that time period, the Court will generally not hear the appeal. We would always suggest that creditors seek legal advice as soon as a rejection is received. BANKRUPTCY ACT 1966 - SECTION 104 Appeal against decision of trustee in respect of proof (1) A creditor, or the bankrupt, may apply to the Court for review of a decision of the trustee under subsection 102(1), (3) or (4) in respect of a proof of debt. (2) The Court may, upon the application, confirm, reverse or vary the decision of the trustee. (3) Subject to the power of the Court to extend the time, an application under this section to review a decision shall not be heard by the Court unless it was made within 21 days from the date on which the decision was made. The onus of proving to the court that the claim should be admitted lies with the creditor. They have to show that the decision to reject the claim was incorrect based on the information that was provided to the practitioner. RELATED TOPICS 2 There are times when the appointee will decide that their rejection or admittance of a proof of debt should be reversed. Both Acts allow that reversal. In some cases the reversal may only be partial, with a part of the debt being rejected or admitted after the initial assessment. The Corporations Act set out this right in regulation 5.6.55 CORPORATIONS REGULATIONS - REGULATION 5.6.55 Revocation or amendment of decision of liquidator (1) If the liquidator considers that a proof of debt or claim has been wrongly admitted, the liquidator may: (a) revoke the decision to admit the proof and reject all of it; or (b) amend the decision to admit the proof by increasing or reducing the amount of the admitted debt or claim. (2) If the liquidator considers that all of a proof of debt or claim has been wrongly rejected, the liquidator may: (a) revoke the decision to reject the proof of debt or claim; and (b) admit all of the proof or admit part of it and reject part of it. The Bankruptcy Act sets out this right in section 102. BANKRUPTCY ACT 1966 - SECTION 102 Admission or rejection of proofs (3) Where the trustee considers that a proof of debt has been wrongly admitted, he or she may: (a) revoke the decision to admit the proof of debt and reject it in whole; or (b) amend the decision to admit the proof of debt by increasing or reducing the amount of the admitted debt. (4) Where the trustee considers that a proof of debt has been wrongly rejected in whole, he or she may: (a) revoke the decision to reject the proof of debt; and (b) admit the proof of debt in whole or admit the proof of debt in part and reject it in part. Once the appointee has made that decision and amended their initial decision, they will have to give notice to that creditor of their new decision and if appropriate, make adjustments to the dividend to be paid or in some cases pay a catch up dividend. 4. PAYMENT OF DIVIDENDS The last step in the process is the physical payment of the dividend. This happens after the proof of debt lodgement date has expired, all of the proofs of debt have all been admitted or rejected and any appeals on rejections have been heard. The appointee will forward a cheque to the creditor along with a statutory Form 549 for corporate insolvencies and a Form 2 for personal insolvencies. If dividend cheques are not banked within a reasonable time period or if creditors cannot be located, the monies will be held by the external administrator for a period of six months after the date of payment, and then forwarded to the appropriate government authority. After this time the creditor will then have to seek the money from that authority. PRIORITIES IN THE PAYMENT OF DIVIDENDS It is a standard concept that all creditors will rank equally in insolvent estates and will be paid ‘pro-rata’ dividends. This concept is set in statute in the following sections. BANKRUPTCY ACT 1966 - SECTION 108 Debts proved to rank equally except as otherwise provided Except as otherwise provided by this Act, all debts proved in a bankruptcy rank equally and, if the proceeds of the property of the bankrupt are insufficient to meet them in full, they shall be paid proportionately. CORPORATIONS ACT 2001 - SECTION 555 Debts and claims proved to rank equally except as otherwise provided Except as otherwise provided by this Act, all debts and claims proved in a winding up rank equally and, if the property of the company is insufficient to meet them in full, they must be paid proportionately. But from a practical point this is not always the case. Each Act also sets out an order for the priorities of payment of dividends. Dividends REVOKING A DECISION TO OBJECT The Corporations Act gives the greatest priority to employees. It provides that entitlements due to employees are to be fully paid before payments to nonpriority creditors. The general priority for dividends is set out in section 556. CORPORATIONS ACT 2001- SECTION 556 Priority payments (1) Subject to this Division, in the winding up of a company the following debts and claims must be paid in priority to all other unsecured debts and claims: (e) subject to subsection (1A)-next, wages and superannuation contributions and superannuation guarantee charge payable by the company in respect of services rendered to the company by employees before the relevant date; (f) next, amounts due in respect of injury compensation, being compensation the liability for which arose before the relevant date; (g) subject to subsection (1B)next, all amounts due: (i) on or before the relevant date; and (ii) because of an industrial instrument; and (iii) to, or in respect of, employees of the company; and (iv) in respect of leave of absence; (h) subject to subsection (1C)-next, retrenchment payments payable to employees of the company. The Bankruptcy Act has a similar general provision under section 109, but only gives a limited priority to outstanding employee wages and no priority to retrenchments payments. In these areas, the Acts differ quite substantially. 67 Dividends 2 BANKRUPTCY ACT 1966 - SECTION 109 Joint Bankruptcy Estates The result generally is: Priority payments The Bankruptcy Act has provision for joint and separate estates. This occurs when two or more bankrupts have joint and several assets and liabilities. For example, bankrupt business partners will have partnership assets (joint) that are held together and individual assets held separately. They may also have individual and joint creditors. This is generally not an issue in a corporate estate and the Corporations Act has no special provisions dealing with joint estates. (a)Any surplus assets in an individual estate of one bankrupt can be used to pay joint creditors in the joint estate to the limit necessary to satisfy those joint claims. If there is still a surplus of assets after paying both individual and joint creditors, the bankrupt whose estate had the surplus is annulled from bankruptcy and the surplus money will be returned to them. (e) fifth, in payment of amounts (including amounts payable by way of allowance or reimbursement under a contract of employment or under an award or agreement regulating conditions of employment, but not including amounts in respect of long service leave, extended leave, annual leave, recreation leave or sick leave), not exceeding in the case of any one employee $1,500 or such greater amount as is prescribed by the regulations for the purposes of this paragraph, due to or in respect of any employee of the bankrupt, whether remunerated by salary, wages, commission or otherwise, in respect of services rendered to or for the bankrupt before the date of the bankruptcy; (g) seventh, in payment of all amounts due to or in respect of any employee of the bankrupt, whether remunerated by salary, wages, commission or otherwise, in respect of long service leave, extended leave, annual leave, recreation leave or sick leave in respect of a period before the date of the bankruptcy; To assist the appointee, the employee creditor should clearly indicate whether they are claiming as an employee and use the required proof of debt forms for that purpose. The question is how are joint and individual assets to be divided amongst the joint and individual creditors in bankrupt estates? In the first instance, joint assets are used to pay joint creditors, and each bankrupt’s individual assets are used to pay each bankrupt’s individual creditors. In some cases there are no surplus assets in either of these different estates and matter can end there. But in some cases, one estate (the joint or either or both of the individual estates) will have a surplus. How any surplus is used is answered in section 110. BANKRUPTCY ACT 1966 - SECTION 110 Application of estates of joint debtors (1) In the case of joint debtors, whether partners or not, the joint estate shall be applied in the first instance in payment of their joint debts, and the separate estate of each joint debtor shall be applied in the first instance in payment of his or her separate debts. (2) If there is a surplus in the case of any of the separate estates, it shall be dealt with as part of the joint estate and if there is a surplus in the case of the joint estate, it shall be dealt with as part of the respective separate estates in proportion to the right and interest of each joint debtor in the joint estate. 68 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU (b)Any surplus in the joint estate will be divided proportionately to the individual estates and their portion of that money can be used to pay their individual creditors. If either of the individual estates has sufficient monies to pay the individual creditors and still has a surplus, that particular bankrupt will be annulled from bankruptcy and the surplus is paid to them. Unless the other individual bankruptcy estate also has sufficient monies to pay their individual creditors, they will not be annulled. (c)There is no right to use surplus assets from one individual estate to pay creditors in the other individual estate. SUMMARY For complete understanding of the topic, the relevant sections of the each of the Acts will have to be read in full. In particular, the regulations of the Corporations Act set out the complete procedure for calling for proofs of debt, their admission and rejection and the appeal process to decisions. The priority provisions in this guide have only been mentioned in summary. RELATED TOPICS 2 CGT AND INSOLVENCY CGT And Insolvency OVERVIEW One of the roles of an external administrator is the realisation of assets owned by the insolvent person. The sale of some of these assets could create a liability under the capital gains tax (CGT) legislation when they are sold. This is a factor that the external administrator will be concerned about, at least to a limited extent. There are three main issues with capital gains tax and insolvent estates: INCOME TAX ASSESSMENT ACT 1997 - SECTION 104.10 1.Who is responsible for the payment of capital gains realised after the appointment of an external administrator? Disposal of a CGT asset: CGT event A1 2.What happens to capital losses available at the date of the appointment? (b) because of the vesting of the asset in a trustee under the Bankruptcy Act 1966 or under a similar foreign law; or 3.Holding companies when a solvent wholly-owned subsidiary is wound up. 1. W HO IS RESPONSIBLE FOR CAPITAL GAINS REALISED AFTER THE APPOINTMENT OF AN EXTERNAL ADMINISTRATOR? The Income Tax Assessment Act 1997 (ITAA) includes provisions that deal with insolvent estates and capital gains, at least where the estate is a bankruptcy, a liquidation or a secured creditor taking action under a security. These provisions state that any actions or realisations taken by: (a)Bankruptcy trustees and part X trustees; (b)Liquidators; and (c)Other people formally acting under a security; that lead to a capital gain tax liability, are deemed to have been done by the company, bankrupt or debtor; and not by the external administrator. This means that the external administrator is not made personally liable for any CGT liability. It places the liability on the entity that originally owed the asset. This process starts by looking at the ‘vesting’ or otherwise of the asset. The legislation states that the vesting of assets in a bankruptcy or liquidation, or the providing or redeeming of a security is not a disposal of a CGT asset and the beneficial owner (the estate) does not change. This is set out in section 104.10. (7) CGT event A1 does not happen if the disposal of the asset was done: (a) to provide or redeem a security; or (c) because of the vesting of the asset in a liquidator of a company, or the holder of a similar office under a foreign law. BANKRUPTCY The ITAA (1997) confirms that the “the vesting of the individual’s CGT assets in the trustee under the Bankruptcy Act 1966 or under a similar foreign law is ignored” in relation to CGT. The provisions related to bankruptcy are: INCOME TAX ASSESSMENT ACT 1997 - SECTION 106.30 EFFECT OF BANKRUPTCY (1) For the purposes of this Part and Part 3-3, the vesting of the individual’s * CGT assets in the trustee under the Bankruptcy Act 1966 or under a similar foreign law is ignored. (2) This Part and Part 3-3 apply to an act done in relation to a CGT asset of an individual in these circumstances as if it had been done by the individual: (a) as a result of the bankruptcy of the individual by the Official Trustee in Bankruptcy or a registered trustee, or the holder of a similar office under a foreign law; (b) by a trustee under a personal insolvency agreement made under Part X of the Bankruptcy Act 1966, or under a similar instrument under a foreign law; (c) by a trustee as a result of an arrangement with creditors under that Act or a foreign law. This section has two effects on CGT and bankruptcy. Firstly the vesting of property in the trustee is not deemed to be a disposal of the asset, so there is no capital gain tax liability automatically created from the vesting of assets. Secondly, any acts of the trustee under a part IV bankruptcy, section 73 arrangement or part X personal insolvency agreement that give rise to a CGT liability are deemed to have been done by the individual (the bankrupt or debtor) and not the trustee. LIQUIDATIONS This section provides that any act by a liquidator that accrues a capital gain is deemed to be an act of the company and not the liquidator; therefore no personal liability will pass onto the liquidator. INCOME TAX ASSESSMENT ACT 1997 - SECTION 106.35 EFFECT OF LIQUIDATION This Part and Part 3-3 apply to an act done by a liquidator of a company, or the holder of a similar office under a foreign law, as if the act had been done instead by the company. SECURED CREDITORS This section deems that acts done by people holding or appointed under security documents that accrue a capital gain are done by the entity that gave the security, not the entity that exercises the security. This also extends to a controller appointed to assist the mortgagee in exercising the security. INCOME TAX ASSESSMENT ACT 1997 - SECTION 106.60 ACTS BY SECURITY HOLDERS This Part and Part 3-3 apply to an act done by an entity (or an agent of the entity) in relation to a CGT asset for the purpose of enforcing or giving effect to a security, charge or encumbrance the entity holds over the asset as if the act had been done instead by the person who provided the security. 69 2 CGT AND INSOLVENCY One further point is that exercising a security or the appointment of a receiver or agent does not change the ownership of the asset and does not accrue a CGT liability as ownership of the asset does not change. Controllers of property usually only act as agents (for the owner of the assets) with powers to sell under the security. The only thing that does change is the right of the security holder to actually sell the asset on behalf of the debtor. It is only the disposal (sale) of that asset that may create a CGT liability. EXTERNAL ADMINISTRATION SUMMARY Two points are relevant to external administrators: 1. The appointment of a liquidator, trustee, controller; or the vesting of property and the exercising of a security does not create a deemed acquisition or disposal of a CGT asset. Without another disposal of the asset, no CGT liability will accrue to any party. 2.The eventual disposal of the CGT asset does not create a personal liability for the external administrator. The liability will accrue to the individual or company. Where a capital gain arises that would lead to a tax liability, the insolvency practitioner will advise the ATO. The ATO will then lodge a proof of debt in the estate for that liability. WHAT ABOUT VOLUNTARY ADMINISTRATORS? The position is slightly different legally, but ends with the same result. The Corporations Act provides that a voluntary administrator acts as the agent of the company and not, effectively, in his own right. Any CGT debt arising during that period will be a company debt, not a debt of the administrator. Any CGT liability is not a debt incurred by the voluntary administrator, so they are not personally liable for it. This position is very similar to that of entities holding security over assets. 70 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU CORPORATIONS ACT 2001 - SECTION 437B Administrator acts as company’s agent When performing a function, or exercising a power, as administrator of a company under administration, the administrator is taken to be acting as the company’s agent. Administrators of deed of company arrangements are also usually protected. Most deed administrators simply act as a manager of a bank account and enforcer of the provisions of the deed. Rarely will a deed administrator control the trading and other actions of a company under a deed that lead to asset realisations. Trading is generally done directly by the company, or with the deed administrator acting as agent of the company under the provisions of the deed. 2. W HAT HAPPENS TO CAPITAL LOSSES AVAILABLE AT THE DATE OF THE APPOINTMENT? The procedure for calculating capital gains for tax purposes for individuals is set out in section 102-5 of the ITAA. Two events occur that eliminate past CGT losses: 1.A person is not entitled to bring forward any capital losses from prior years into a year in which he or she became a bankrupt or was released from their debts. This only pertains to people becoming bankrupt, not to companies. But the provision works twice, once when the person is made a bankrupt, and then again usually three years later when they are released from their debts at discharge. 2. A person is not entitled to bring forward any capital losses into a year in which they are released from their debts under a law relating to bankruptcy. Discharge from such debts occurs at the end of the bankruptcy or the end of a part IX, part X or a section 73 arrangement. Any capital losses accrued before the bankruptcy or other related appointment will be lost at the end of that administration. The factor of timing in either becoming a bankrupt (the commencement of the bankruptcy) and the release of debts (usually at the end of a bankruptcy or the agreement) may have to be taken into consideration. INCOME TAX ASSESSMENT ACT 1997 - SECTION 102.5 Assessable income includes net capital gain (2) However, if during the income year: (a) you became bankrupt; or (b) you were released from debts under a law relating to bankruptcy; any net capital loss you made for an earlier income year must be disregarded in working out whether you made a net capital gain for the income year or a later one. Annulments of bankruptcies eliminate the bankruptcy. Annulments obtained by payment of debts (section 153) or through the court will reinstate these losses as there is no bankruptcy and no release of debts - as they are paid. Annulments obtained through section 73 proposals and the release of debts attached to the through section 74 are excluded as there still is a release of debts, and the CGT losses will be lost. INCOME TAX ASSESSMENT ACT 1997 - SECTION 102.5 Assessable income includes net capital gain (3) Subsection (2) applies even though your bankruptcy is annulled if: (a) the annulment happens under section 74 of the Bankruptcy Act 1966 ; and (b) under the composition or scheme of arrangement concerned, you were, will be or may be released from debts from which you would have been released if instead you had been discharged from the bankruptcy. RELATED TOPICS There appears to be no such provision for a company entering into liquidation. There is generally no real need for these provisions as the life of the company will come to an end at the conclusion of the liquidation and there will be no opportunity to use any accrued CGT losses ‘after a liquidation’. There is no statutory provision dealing with the availability of losses to a company that is subject to a deed of company arrangement, so it is expected that any losses would be available to offset against any capital gains made by the company realising assets (or by the deed administrator acting as agent of the company). It is possible that the ATO will argue that the same policy as the bankruptcy provisions set out above should apply, if the company will continue in existence after the conclusion of the deed of company arrangement, or will only allow losses in the same percentage as dividends paid to the ATO and a release of part of such debt. 3. HOLDING COMPANIES WHEN A SOLVENT WHOLLY-OWNED SUBSIDIARY IS WOUND UP The first thing to note is that the subsidiary being would up must be solvent. The ITAA gives specific tax relief in the case of a holding company receiving an asset (a roll-over of an asset) from the liquidator of a subsidiary under a members’ voluntary winding up. This relief may only be a reduction of the CGT, not an entire exemption. This is partially due to the fact that, as the liquidated company is solvent, the ATO will be paid all outstanding tax liabilities by that company and therefore will be no release of debts. This CGT relief only applies if the roll-over of the asset was transferred in relation to the cancellation of the shareholding in the 100% owned subsidiary that is being wound up. The holding company effectively receives the asset in consideration for the cancellation of the shares. INCOME TAX ASSESSMENT ACT 1997 - SECTION 126.85 INCOME TAX ASSESSMENT ACT 1997 - SECTION 126.85 Effect of roll-over on certain liquidations Effect of roll-over on certain liquidations (1) A capital gain a company (the holding company) makes because shares in its 100% subsidiary are cancelled (an example of CGT event C2: see section 104- 25) on the liquidation of the subsidiary is reduced if the conditions in subsection (2) are satisfied. The reduction is worked out under subsection (3). (3) The reduction of the capital gain is worked out in this way. The capital gain that a holding company makes from the roll-over of the asset because post-CGT shares in its 100% owned subsidiary are cancelled on the liquidation of the subsidiary is reduced only if certain conditions are satisfied. (a)The sum of the capital gains the subsidiary would make on the disposal of its CGT roll-over assets to the holding company; and These conditions are: (a)There must be a roll-over of at least one ‘CGT asset’ (i.e. acquired on or after 20 September 1985) and the asset must be disposed of (transferred) by the subsidiary to the holding company in the course of its liquidation; (b) The disposal must either be part of the liquidator’s distribution in the course of the liquidation; or have occurred within 18 months of the dissolution of the subsidiary (if they are part of an interim distribution); (c)The liquidated company must be a 100% owned subsidiary from the time of the disposal until the cancellation of the shares; (d)The market value of the asset(s) must comprise at least part of the capital proceeds for the cancellation of the shares; CGT AND INSOLVENCY 2 METHOD STATEMENT Step 1. Work out (disregarding this section) the sum of the capital gains and the sum of the capital losses the holding company would make on the cancellation of its shares in the subsidiary. Step 2. Work out (disregarding this Subdivision): (b) The sum of the capital losses it would make except for Subdivision 170-D on the disposal of its CGT assets to the holding company; in the course of the liquidation assuming the capital proceeds were the assets’ market values at the time of the disposal. Step 3. If, after subtracting the sum of the capital losses from the sum of the capital gains, there is an overall capital gain from step 1 and an overall capital gain from step 2, then continue. Otherwise there is no adjustment. Step 4. Express the number of post-CGT shares as a fraction of the total number of shares the holding company owned in the subsidiary. Step 5. Multiply the overall capital gain from Step 2 by the fraction from Step 4. Step 6. Reduce the overall capital gain from Step 1 by the amount from Step 5. The result is the capital gain the holding company makes from the cancellation of its shares in the subsidiary. (e)One or more of the shares that were cancelled must have been acquired by the holding company on or after 20 September 1985, that is, they must be post-CGT shares. The mechanics to calculate this relief is summarised below. Section 126-85 of the ITAA contains the full explanation, a snapshot is referenced below. 71 2 GST AND INSOLVENCY GST AND INSOLVENCY INTRODUCTION The introduction of goods and services tax (GST) added extra tax obligations to both taxpayers and insolvency practitioners appointed to those taxpayers. This guide explains the more common issues arising from the appointment of external administrators and GST. It deals with who is responsible for any GST liability and when that liability will arise. However, the technicalities of GST are best left to tax accountants. The insolvency of an entity, particularly the vesting of assets in a bankruptcy trustee, does not automatically give rise to any GST consequences or liabilities as there has been no ‘taxable supply’ by any party. However, the appointment of an external administrator does change the status of the entity for GST purposes, and the practitioner will assume some of the taxpayer’s responsibilities. They also must start reporting for GST in their own right. These rules are governed by the a New Tax System (Goods and Services Tax) Act 1999. THE INCAPACITATED ENTITY What is an incapacitated entity? An entity (the taxpayer) becomes an incapacitated entity and an external administrator becomes a “representative of the incapacitated entity” upon any of the following types of appointments to the taxpayer: • Bankruptcy • Controlling trusteeship • Liquidation • eceivership (even if only appointed R over some of the assets) • Voluntary administration • E xecuting a deed of company arrangement An incapacitated entity is defined (section 195-1 of the Act) as: incapacitated entity means: (a)An individual who is a bankrupt; or (b)An entity that is in liquidation or receivership; or (c)an entity that has a representative. 72 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU The ‘catch all’ part of that definition is “an entity that has a representative”. This effectively includes all other insolvency type appointments that are not bankruptcies, liquidations or receiverships. A ‘representative’ of the incapacitated entity is also defined in section 195-1 as: (a) a trustee in bankruptcy; or (b) a liquidator; or (c) a receiver; or (ca) a controller (within the meaning of section 9 of the Corporations Act 2001 ); or TWO REGISTRATIONS There are two parts to the registration process. The first is the registration of the representative of the incapacitated entity to advise the ATO that a representative has been appointed. The second is registration of the representative for GST if that is required. Registration for GST is necessary regardless of whether the entity is expected to exceed the turnover limits after the appointment, if the entity was or should have been registered before the appointment. (d) an administrator appointed to an entity under Division 2 of Part 5.3A of the Corporations Act 2001 ; or A NEW TAX SYSTEM (GOODS AND SERVICES TAX) ACT 1999 - SECTION 58.20 (e) a person appointed, or authorised, under an Australian law to manage the affairs of an entity because it is unable to pay all its debts as and when they become due and payable; or Representatives are required to be registered (f) an administrator of a deed of company arrangement executed by the entity. Nearly all formal appointments over the financial affairs of a person or company are likely to convert that entity into an incapacitated entity and require the registration of the representative with the Australian Taxation Office (ATO). The appointment makes the representative (the practitioner) a new entity for GST purposes. Registration of the representative for GST purposes will be required if the incapacitated entity is, or was required to be, registered for GST purposes. (1) A representative of an incapacitated entity is required to be registered in that capacity if the incapacitated entity is registered or required to be registered. (2) This section has effect despite section 23-5 (which is about who is required to be registered). The representative may not have any GST responsibilities if the incapacitated entity did not have any - for example: a consumer bankruptcy. If there is a requirement for the representative to register for GST, the representative must lodge returns in their own right and report various matters to the ATO. In fact, if the ATO must cancel the representative’s GST registration if they believe that they do not need to be so registered: section 58.25 “The Commissioner must cancel the registration of a representative of an incapacitated entity if the Commissioner is satisfied that the representative is not required to be registered in that capacity”. RELATED TOPICS In summary, if the entity becomes incapacitated (a)The practitioner becomes the representative of the incapacitated entity and becomes a new tax entity in his or her own right. They must register with the ATO as the representative of the incapacitated entity; (b)If the incapacitated entity was or should have been registered for GST, the representative must register for GST. The registration as a representative of the incapacitated entity ends when the appointment ends. The practitioner (the liquidator or trustee etc.) simply has to notify the Commissioner to cancel the registration. The practitioner must notify the commissioner within 21 days after ceasing to be a representative. A NEW TAX SYSTEM (GOODS AND SERVICES TAX) ACT 1999 - SECTION 58.30 Notice of cessation of representation A representative who ceases to be a representative of an incapacitated entity must notify the Commissioner of that cessation, in the approved form, within 21 days after so ceasing. TAX PERIODS AND LODGEMENTS How does the appointment of a representative affect tax periods? Most insolvency appointments happen during a financial year, not June 30. The current tax period for the incapacitated entity is deemed to have ended on the day before the appointment. A new tax period commences on the day of the appointment. Final returns should be lodged for GST purposes as at the date of the appointment and the ATO will calculate the outstanding debt, if any. The new tax period (deemed to have started at the date of the appointment) will end on the date that the normal tax period would have ended and returns will have to be lodged separately for that period. That is, the tax period is divided into two periods at the date of appointment. A NEW TAX SYSTEM (GOODS AND SERVICES TAX) ACT 1999 - SECTION 27.39 A NEW TAX SYSTEM (GOODS AND SERVICES TAX) ACT 1999 - SECTION 27.40 TAX PERIODS OF INCAPACITATED ENTITIES An entity’s concluding tax period (1) If an entity becomes an incapacitated entity, the entity’s tax period at the time is taken to have ended at the end of the day before the entity became incapacitated. (a) an individual dies; or (2) If a tax period (the first tax period) ends on a particular day because of subsection (1), the next tax period starts on the day after that day and ends when the first tax period would have ended but for that subsection. The representative also has a tax period. It begins on the date of appointment (the date of the new divided tax period described above) and each period has the same start and end dates as the incapacitated entity - so the initial tax period is likely to be shorter than a normal tax period unless the appointment happened to occur on the first date of a tax period. A NEW TAX SYSTEM (GOODS AND SERVICES TAX) ACT 1999 - SECTION 58.35 Tax periods of representatives (1) If a representative of an incapacitated entity is required to be registered in that capacity, the tax periods applying to the representative in that capacity are the same tax periods that apply to the incapacitated entity. (2) This section has effect despite Division 27 (which is about how to work out the tax periods that apply). The obligations of the representative end when the appointment ends, but the entity may or may not continue in existence after that date. The Act provides that the entity will have a concluding tax period (its tax obligations will end) when it dies (in the case of a person) or ceases to exist (in the case of other business entities). GST AND INSOLVENCY 2 (1) If: (b) another entity for any reason ceases to exist; the individual’s or entity’s tax period at the time is taken to have ceased at the end of the day before the death or cessation. (1A) If an entity ceases to carry on any enterprise, the entity’s tax period at the time is taken to have ceased at the end of the day on which the cessation occurred. (2) If an entity’s registration is cancelled, the entity’s tax period at the date of effect of the cancellation (the cancellation day) ceases at the end of the cancellation day. It is unlikely that this provision will have much effect on a bankruptcy trustee (even if they are required to be registered for GST purposes) as the bankrupt is likely to survive the bankruptcy process. Companies in liquidation on the other hand, usually are deregistered upon the cessation of the liquidation. WHO MUST LODGE THE BAS? The Act provides that the representative (who is registered for GST) must lodge returns in each tax period regardless of whether there has been any activity or any amount of GST to pay or refund to be received. A NEW TAX SYSTEM (GOODS AND SERVICES TAX) ACT 1999 - SECTION 31.5 Who must give GST returns (1) If you are registered or required to be registered, you must give to the Commissioner a GST return for each tax period. (2) You must give the return whether or not: (a) your net amount for the tax period is zero; or (b) you are liable for the GST on any taxable supplies that are attributable to the tax period. 73 2 GST AND INSOLVENCY The practical effect is that the representative will usually control the financial affairs of the incapacitated entity after the appointment and will report the GST consequences on transactions done after that appointment. The intention is to pass any post-appointment GST responsibility to the representative while they are in control. Some appointments (for example: administrator of a deed of company arrangement) do not leave the representative in control of the entity and it may have a requirement to do its own reporting. In these cases, the entity will have to lodge a BAS itself and the representative will lodge one for his transactions. If the entity or representative is required to be registered for GST purposes, an obligation to commence lodging returns commences on the appointment, regardless of how the representative has been appointed. WHO IS LIABLE FOR THE GST? The Act was altered to clarify who was responsible for GST debits and credits and whether the entity or the representative would be liable for the GST payable. The short answer is that the representative is liable for the tax consequences of transactions that were entered into during their appointment, regardless of the capacity of their appointment. Unfortunately and adding some confusion, in describing the position, the Act refers to the representative (the insolvency practitioner) as ‘the entity’ and the incapacitated entity as ‘the other entity’. This is achieved in a two step process. The first step is making the entity responsible (deem the transactions were done by the entity) for all supplies and acquisitions etc. The intention is to ensure that the GST consequences that arise while the representative is acting are the same as consequences as if they were done by the entity. 74 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU A NEW TAX SYSTEM (GOODS AND SERVICES TAX) ACT 1999 - SECTION 58.5 General principle for the relationship between incapacitated entities and their representatives (1) Subject to this Division, any supply, acquisition or importation by an entity in the capacity of a representative of another entity that is an incapacitated entity is taken to be a supply, acquisition or importation by the other entity. The section will continue to apply if the entity ceases to be an incapacitated entity and the representative resigns, meaning that the incapacitated entity will be liable for further GST liabilities based on transactions that occurred while it was incapacitated. (3) To avoid doubt, if the other entity ceases to be an incapacitated entity, this section continues to apply in relation to the supply, acquisition or importation, or to the act or omission, after the other entity ceases to be an incapacitated entity. A further effect of the section is to ensure that the entity will be liable for, or entitled to, any GST consequences of transactions entered into during the period of the representative’s appointment. The second step is to make the representative liable to pay the GST that the entity would be liable to pay - as far as that liability “is within the scope of the representative’s responsibility or authority for managing the incapacitated entity’s affairs”. A NEW TAX SYSTEM (GOODS AND SERVICES TAX) ACT 1999 - SECTION 58.10 Circumstances in which representatives have GST-related liabilities and entitlements General rule (1) A representative of an incapacitated entity: (a) is liable to pay any GST that the incapacitated entity would, but for this section or section 48-40, be liable to pay on a taxable supply or a taxable importation; and (b) is entitled to any input tax credit that the incapacitated entity would, but for this section or section 48-45, be entitled to for a creditable acquisition or a creditable importation; and (c) has any adjustment that the incapacitated entity would, but for this section or section 48-50, have; to the extent that the making of the supply, importation or acquisition to which the GST, input tax credit or adjustment relates is within the scope of the representative’s responsibility or authority for managing the incapacitated entity’s affairs. Appointments that do not give the representative the “responsibility or authority” to make transactions, like a deed of company arrangement appointment that does include such powers, will not give rise to personal liability for GST transactions. But if the representative enters into the transaction, they will be liable for the GST consequences. RELATED TOPICS 2 (2) This section does not apply to the GST payable on a taxable supply to the extent that one or more of the following apply: (a) the incapacitated entity received the consideration for the supply before the representative became a representative of the incapacitated entity; (b) if, under Division 83 or 84, the GST is payable by the recipient of the supply--the incapacitated entity provided the consideration for the supply before the representative became a representative of the incapacitated entity; (c) if: (i) the supply is a supply for which a voucher to which Division 100 applies is redeemed; and (ii) the incapacitated entity supplied the voucher before the representative became a representative of the incapacitated entity; the consideration for the supply referred to in subparagraph (i) does not exceed the consideration provided for the incapacitated entity’s supply of the voucher. (3) This section does not apply to an input tax credit for a creditable acquisition to the extent that the incapacitated entity provided the consideration for the acquisition before the representative became a representative of the incapacitated entity. These provisions end the argument of who is responsible for GST transactions. The entity is responsible, but the representative is liable if they entered into the transaction. The representative has to lodge returns at the same time as the entity, but the commencement date of the first period will depend on the appointment date. A NEW TAX SYSTEM (GOODS AND SERVICES TAX) ACT 1999 - SECTION 58.35 Tax periods of representatives (1)If a representative of an incapacitated entity is required to be registered in that capacity, the tax periods applying to the representative in that capacity are the same tax periods that apply to the incapacitated entity. (2) This section has effect despite Division 27 (which is about how to work out the tax periods that apply). It is possible that two BAS’s should be lodged for an entity. Take, for example, a deed of company arrangement where the deed administrator files a BAS for tax consequences under the administration of the deed, and the company trades under its own right and lodges its own BAS each period. Each entity will only report its own transactions on their own BAS. ADJUSTMENTS TO PRE-APPOINTMENT GST LIABILITIES In many insolvent estates, the ATO has an outstanding debt for GST. Some adjustments may be required to the GST consequences of pre-appointment transactions that may cause the ATO to increase or decrease their outstanding debt. These are called ‘increasing’ or ‘decreasing’ adjustments. A NEW TAX SYSTEM (GOODS AND SERVICES TAX) ACT 1999 - SECTION 19.10 Adjustment Events (3) An adjustment event: (a) can arise in relation to a supply even if it is not a taxable supply; and (b) can arise in relation to an acquisition even if it is not a creditable acquisition. Accrual Based Accounting GST AND INSOLVENCY The representative is not liable when the supply or acquisition occurred before the representative became the representative of the incapacitated entity. The two most common adjustments under accrual accounting relate to the GST consequences from; 1. The non-collection of debtors where GST has been paid before the appointment (decreasing adjustment); and 2.Adjustments to taxable credits due to the non-payment of creditors through a dividend where GST has been claimed pre-appointment (increasing adjustment). Further, if a representative accounts on an accrual basis, the GST effects of transactions by the entity that occurred before the appointment of the representative may be attributed to the first tax period of the representative. A NEW TAX SYSTEM (GOODS AND SERVICES TAX) ACT 1999 - SECTION 58.40 Effect on attribution rules of not accounting on a cash basis (1) If: (a) a representative of an incapacitated entity does not account on a cash basis; and (b) because of section 58-10, all or part of the amount of GST payable on a taxable supply is payable by the representative, or the representative is entitled to all or part of the input tax credit for a creditable acquisition then, to the extent that, but for this section, the GST or input tax credit would be attributable to a tax period that ended before the representative became a representative of the incapacitated entity, the GST or input tax credit is instead attributable to the first tax period applying to the representative in that capacity. (2) This section has effect despite sections 29-5 and 29-10 (which are about attribution of GST on taxable supplies and of input tax credits for creditable acquisitions). 75 2 GST AND INSOLVENCY WRITING OFF BAD DEBTS It is not uncommon for practitioners to write off pre-appointment debtors as uncollectable. There can be numerous reasons for this to occur. It is also possible that the insolvent entity has accrued these debts before the appointment and may have paid or accrued GST on them. If these debtors are written off, the GST on those debts should in theory be refunded. In practice they are deducted off the GST debt outstanding. A NEW TAX SYSTEM (GOODS AND SERVICES TAX) ACT 1999 - SECTION 21.5 Writing off bad debts (taxable supplies) (1) You have a decreasing adjustment if: (a) you made a taxable supply; and (b) the whole or part of the consideration for the supply has not been received; and (c) you write off as bad the whole or a part of the debt, or the whole or a part of the debt has been overdue for 12 months or more. The amount of the decreasing adjustment is 1/11th of the amount written off, or 1/11th of the amount that has been overdue for 12 months or more, as the case requires. (2) However, you cannot have an adjustment under this section if you account on a cash basis. The Act clarifies that the adjustment cannot be made if the representative accounts on a cash basis. A NEW TAX SYSTEM (GOODS AND SERVICES TAX) ACT 1999 - SECTION 58.15 Adjustments for bad debts (1) For the purposes of determining whether an adjustment arises under section 21-5 or 21-15 for the whole or a part of a debt relating to a taxable supply or creditable acquisition for which a representative of an incapacitated entity is liable to pay GST, or is entitled to an input tax credit, under section 58-10: (a) the adjustment cannot arise if, when the whole or part of the debt is written off, or has been overdue for 12 months, the representative accounts on a cash basis; but (b) it does not matter whether the incapacitated entity accounts on a cash basis at that or any other time. (2) This section has effect despite subsections 21-5(2) and 21-15(2) (which preclude adjustments for bad debts when accounting on a cash basis). NON-PAYMENT OF CREDITORS Unless there are sufficient assets to pay all creditors in full - which is a rarity - there will be some part of creditor’s debts that will go unpaid. If the insolvent entity has claimed the GST on these creditor amounts before the appointment, they will in theory have to be refunded to the ATO to the extent that the creditors were unpaid. In practice the GST liability to the ATO increases. A NEW TAX SYSTEM (GOODS AND SERVICES TAX) ACT 1999 - SECTION 21.15 Bad debts written off (creditable acquisitions) (1) You have an increasing adjustment if: (a) you made a creditable acquisition for consideration; and (b) the whole or part of the consideration is overdue, but you have not provided the consideration overdue; and 76 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU (c) the supplier of the thing you acquired writes off as bad the whole or a part of the debt, or the whole or a part of the debt has been overdue for 12 months or more. The amount of the increasing adjustment is 1/11th of the amount written off, or 1/11th of the amount that has been overdue for 12 months or more, as the case requires. (2) However, you cannot have an adjustment under this section if you account on a cash basis. CASH ACCOUNTING The two most common adjustments under cash reporting system relate to the GST consequences from; 1. The collection of debtors where GST has not been paid before the appointment (increasing adjustment); and 2. Adjustments due to the payment of creditors through a dividend where GST has not been claimed pre-appointment (decreasing adjustment). A NEW TAX SYSTEM (GOODS AND SERVICES TAX) ACT 1999 - SECTION 19.40 Where adjustments for supplies arise You have an adjustment for a supply for which you are liable to pay GST (or would be liable to pay GST if it were a taxable supply) if: (a) in relation to the supply, one or more adjustment events occur during a tax period; and (b) GST on the supply was attributable to an earlier tax period (or if the supply was not a taxable supply, would have been attributable to an earlier tax period had the supply been a taxable supply); and (c) as a result of those adjustment events, the previously attributed GST amount for the supply (if any) no longer correctly reflects the amount of GST (if any) on the supply (the corrected GST amount ), taking into account any change of circumstances that has given rise to an adjustment for the supply under this Subdivision or Division 21 or 134. RELATED TOPICS 2 Sometimes practitioners will collect amounts from debtors that were billed before the appointment. Under a cash accounting system, no GST would have been paid on these amounts. In practice, this payment of the GST is an increasing adjustment to the liability to the ATO. A NEW TAX SYSTEM (GOODS AND SERVICES TAX) ACT 1999 - SECTION 19.50 Increasing adjustments for supplies If the corrected GST amount is greater than the previously attributed GST amount, you have an increasing adjustment equal to the difference between the corrected GST amount and the previously attributed GST amount. PAYMENT OF DIVIDENDS TO CREDITORS Under the cash accounting system, GST is not claimed on supplies from creditors until the payment is made to the creditor. No GST credit will have been allowed for outstanding creditors at the time of the appointment, but will be allowed when a dividend is paid to those creditors. The practitioner will be able to claim the GST on dividends paid by way of a decreasing adjustment to the ATO liability for the amount of the dividend paid to relevant creditors. A NEW TAX SYSTEM (GOODS AND SERVICES TAX) ACT 1999 - SECTION 19.55 GST AND INSOLVENCY COLLECTION OF DEBTORS Decreasing adjustments for supplies If the corrected GST amount is less than the previously attributed GST amount, you have a decreasing adjustment equal to the difference between the previously attributed GST amount and the corrected GST amount. SUMMARY OF ADJUSTMENTS The following table sets out the general adjustments required for adjusting events occurring after the appointment for pre-appointment transactions. CASH REPORTING ACCRUALS REPORTING Debtors Where debtors are collected by the representative under a cash reporting system, GST is attributable to the amount collected. An increasing adjustment should be made to the ATO’s proof of debt. Where debtors are written off as uncollectible (and GST has been accrued on these debtors), the amount of GST attributable to the written off debtors becomes a decreasing adjustment to the ATO’s proof of debt. Dividend to Creditors Where dividends are paid to creditors under a cash system, GST credits arise for the amount of the payments. These will give rise to a decreasing adjustment to the ATO’s proof of debt. Where GST credits have been claimed and those creditors are now not going to be paid, an increasing adjustment is made to the ATO’s proof of debt to add back the unpaid credits. Representatives must notify the ATO of increasing adjustments or the representative may become liable for the lost dividends that should have been collected by the ATO. The ATO will then adjust their proof of debt to better reflect their debt on pre-appointment transactions once they know the final result of those transactions. SUMMARY The following points provide a summary of these provisions: (i) The appointment of an external administrator requires that administrator to register as a representative of an incapacitated entity; (ii) If the incapacitated entity is required to be registered for GST, the representative will be required to register for GST; (iii) The incapacitated entity’s tax year will end on the date of the appointment and a final BAS will have to be filed; (iv) The representative registered for GST purposes has a responsibility to file BAS’s during their administration; (v) The representative will have to notify the ATO of any increasing adjustments due to collection of debtors and payment of partial dividends. 77 Contained in this section are selected articles from our monthly Worrells Plain Talk e-Update. Join over 8,400 people who receive it each month by subscribing via Worrells.net.au WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU 3 worrells articles THE TAXMAN COMETH 80 ASSET PROTECTION STRUCTURES EXPOSED UNDER PPS ACT 81 DEALING WITH REAL PROPERTY AFTER DISCHARGE 83 WHAT HAPPENS WHEN A MEMBER OF A SELF MANAGED SUPER FUND BECOMES BANKRUPT? 84 A TALE OF THREE PROPERTIES 85 79 3 THE TAXMAN COMETH THE TAXMAN COMETH The shock of the 2011 natural disasters hit many Australian’s hard, both as a community and commercially. After what now seems to be a short reprieve in the scheme of things, we are again facing hard times of a different nature. We were fortunate in the months of recuperation to have our government’s support and all manner of financial relief and incentives. The Australian Taxation Office (ATO) declared; “As I have said in the past, during these difficult times our message is clear to the public, look after yourself, your family, community and property first and don’t worry about tax – we can sort things out later.” Commissioner of Taxation. Michael D’Ascenzo February 2011. During this period of ‘let’s sort things out later’ many businesses still were accruing tax and literally were putting off payment to be dealt with later. It appears that later is now. The ATO’s annual report for the 2010-11 year illustrates that while collectable debt was down by 0.6 billion dollars, insolvency debt has increased by 1.4 billion dollars. The correlation between these types of debt appears indicative of action taken in recent months and is now forming the landscape of 2012. Under the ATO’s “Firmer Action Policy”, which was released in December 2010 as a fact sheet for ‘taxpayers with a debt’, the ATO has advised there will be a strong focus on taxpayer viability. This is assessed under six key elements in deciding if it will in essence allow a business to continue, these being: December 2011 saw two new ATO initiatives being rolled out, the legal profession data matching project and boat owner data matching. 1. Gross margin. The Queensland Law Society was served by the ATO with a notice to provide information on its members in accordance with the Income Tax Assessment Act and the Tax Administration Act. In addition to this scheme the ATO is undertaking data analysis from more than 110,000 people who own boats worth more than $25K and comparing this information with declared income. The courts were also flooded (pardon the pun) in December 2011, with the majority of all hearings being initiated by way of ATO applications. 2. Cash flow. 3.Net assets and working capital position. 4. Liquidity ratios. 5. Debtors and creditors. 6. Availability of debt funding. As part of the ‘firmer action’ process we have seen a marked increase in the number of garnishee orders being issued by the ATO. These orders can be issued to a range of 3rd parties. In delivering our February seminar series on ‘The Taxman Cometh’ it was of great surprise to many professionals that garnishee orders can also be issued to superannuation funds. Our message is that the ATO is coming down on outstanding debt. Its leniency to taxpayers in the past now seems to be a thing of the past. It is wanting resolution to files even if that means bankruptcy or liquidation. By Morgan Lane Partner, Worrells Brisbane Worrells Plain Talk e-Update March 2012 80 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU worrells articles ASSET PROTECTION STRUCTURES EXPOSED UNDER PPS ACT 3 This structure typically involves a corporate group structure, where assets used in conducting the business are held in one or more “Asset Holding Entity/ies”, separate to the “Trading Entity” which is carrying the risks associated with trading a business. The Asset Holding Entity will lease/hire/ rent the assets to the Trading Entity, to enable it to carry on its business. This structure protects those assets in the event the Trading Entity becomes insolvent as ownership vests with the Asset Holding Entity, as set out below. Under the PPS Act, such arrangements will be deemed security interests (defined as a PPS lease) and require perfection under the PPS Act, usually by registration on the PPS Register. Failure to perfect will negate these asset protection strategies due to the following: • • n unperfected security interest A vests in the grantor on the grantors insolvency (section 267 of the PPS Act); and perfected security interest A has priority over an unperfected security interest, where there are competing security interests (section 553. of the PPS Act). There are a number of pre-conditions to be able to perfect a security interest, including that there is a written security agreement signed or adopted by the grantor (Section 20). From our experience many asset protection structures as set out above are loose arrangements which are generally not formally documented. This is perhaps understandable given many of the examples we see are small to medium family companies, and the law as it currently stands dictates that ownership of those assets is paramount (as opposed to possession under the PPS Act). Under the current legislation the assets are therefore generally not at risk on an insolvency event of the Trading Entity, assuming ownership can be proven. This position will change when the PPS Act commences, due to the effect of the vesting provisions on insolvency (Section 267) and the priority rules for competing security interests (Section 553.. Based on the foregoing, asset protection structures as set out above must be documented in writing and perfected by registration on the PPS register. The PPS Act contains strict timelines for registration on the PPS Register which must be complied with. The practical effect of not doing so is that, upon insolvency of the Trading Entity, ownership of the assets will be transferred automatically to the company in administration/liquidation or the bankrupt estate and the asset protection structure will provide no protection to such assets. The assets would also be lost to a secured creditor who has a competing security interest (such as a bank), provided that creditor perfected their security interest in compliance with the PPS Act. ASSET PROTECTION STRUCTURES EXPOSED UNDER PPS ACT The Attorney-General has recently determined the registration commencement time for the Personal Property Securities Act (“PPS Act”) to be 30 January 2012. Consequently there is limited time to prepare for the new legislation, including addressing the potential impact the PPS Act will have on asset protection structures commonly employed by professional advisors in their own businesses and by their clients. Specific Concepts and Transitional Provisions The discussion above is a brief summary of how traditional asset protection measures may be exposed under the PPS Act. A number of concepts have been addressed in this article which warrants further explanation, including: • What is a PPS Lease; and • P re-conditions to perfecting a security interest (including the requirement that there be a written agreement). There are also transitional provisions contained in the PPS Act which appear to provide some relief for existing arrangements that are in place prior to registration commencement time, due to the concept of “temporary perfection”. These issues are discussed in further detail below: What is a PPS Lease PPS Lease is defined in Section 13 of the PPS Act. In simple terms, a PPS Lease means a lease or bailment of goods: • F or a term generally greater than 12 months; or • F or goods that may or must be described by serial number (in accordance with the regulations) generally for a term of 90 or more days. There is little doubt that the asset protection structure as set out in this article will meet the definition of a PPS Lease in most circumstances. 81 3 ASSET PROTECTION STRUCTURES EXPOSED UNDER PPS ACT Perfecting a Security Interest There are a number of pre-conditions to be able to perfect a security interest. These pre-conditions include enforceability of security interests against third parties, as set out in Section 20 of the PPS Act. Enforceability against third parties is satisfied where the security interest is attached to the collateral (Section 19) and: • T he Secured Party possesses the collateral (Section 24), but not by repossession. This is likely to apply in limited circumstances; • T he Secured Party has perfected the security interest by control (Sections 25 to 29). This is limited to certain financial collateral; or • T here is a written security agreement signed or adopted by the grantor (Section 20). Given the nature of asset protection structures set out in this article, a written security agreement will be the best, and potentially only, means of meeting the criteria for perfecting a security interest. Effect of the Transitional Provisions It would appear that the transitional provisions in the PPS Act will apply some relief for existing arrangements that are in place prior to registration commencement time. The transitional provisions provide “temporary perfection” for 24 months from registration commencement time. The security interest must be perfected (usually by registration) within 24 months to maintain continuous perfection. The concept of temporary perfection is a mechanism employed by the PPS Act to provide temporary protection for a security interest in existence prior to registration commencement time, where it was considered as a policy matter that it would be appropriate to do so. 82 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU Section 307 of the PPS Act defines a transitional security agreement as “a security agreement that is in force immediately before the registration commencement time, and that continues in force at and after that time.” Summary Security agreement is defined in Section 10 of the PPS Act as: 1.Arrangements in place prior to registration commencement time may enjoy temporary perfection, even if not documented in writing, and may be capable of maintaining continuous perfection if perfected within 24 months of registration commencement time. However it is strongly advisable that legal advice is sought on any arrangements which are in existence prior to registration commencement time; and “(a) an agreement or act by which a security interest is created, arises or is provided for; or (b)writing evidencing such an agreement or act.” The words “or act” would appear to extend the definition of security agreement beyond mere written documents. This is different to the requirement for a “written security agreement” in s 202., being one of the criteria for a security interest to be enforceable against third parties (for agreements entered into after commencement of the PPS Act). Accordingly it would seem that a secured party may be able to argue that an unwritten arrangement constitutes a “security agreement” for the purposes of the transitional provisions. Therefore, it appears that it may not be necessary for temporary perfection that the security interest satisfies the requirement to make it enforceable against third parties, and accordingly: • T he absence of a written agreement may not preclude a secured party taking advantage of the transitional provisions providing temporary perfection, if the secured party can establish that there was “an agreement or act by which a security interest is created, arises or is provided for” in force; and • T he secured party may also be able to register a transitionally perfected security interest within the 24 months to maintain continuous perfection from the time immediately before the registration commencement time. In summary, asset protection structures as set out in this article will fall under the ambit of the PPS Act and require perfection on the PPS register (usually by registration). In addition: 2. arrangements entered into post registration commencement time must be documented in writing and perfected by registration on the PPS register. As noted above, the PPS Act contains strict timelines for registration on the PPS Register which must be complied with. It is evident the provisions are quite complex, and it is therefore advisable that all businesses review their asset protection structures and strategies to ensure they can withstand the commencement of the PPS Act. This will include ensuring all existing arrangements qualify for temporary perfection under the transitional provisions (and are subsequently perfected within 24 months to maintain continuous perfection). It is also critical that any ongoing asset protection advice properly considers the impact of the PPS Act. By Matthew Jess Partner, Worrells Melbourne Worrells Plain Talk e-Update December 2011 worrells articles DEALING WITH REAL PROPERTY AFTER DISCHARGE 3 Dealing with real property is really no different from dealing with any other divisible asset. The trustee will want to find the value of the property and what amounts are secured against it. These securities may range from your simple housing loan supported by a registered mortgage to other creditors holding equitable mortgages supported by caveats. Once the trustee has gathered all of these figures, he or she will be able to do a calculation of the equity in the property. They do this primarily to determine whether any equity exists and how that equity is divided between the bankrupt estate and any co-owner. No. The trustee still retains the legal interest. In some cases the mortgagee will move to sell the property and the matter will come to an end with that sale. In some cases secured creditors do not move to sell the property (usually because the loan is being kept up to date) and the trustee will stay vested with that (zero-value) legal interest. In many cases the trustee will attempt to ‘sell’ the legal interest to any co-owner for some amount once the equity has been calculated, or for a nominal amount if the equity has no value. At times this will not be possible because either the co-owner either does not want to buy or is unable to buy. It is necessary to differentiate between the concepts of the legal interest that the trustee has in the property and the equity or the value of that interest. Even though there may be no equity (the secured creditors are owed as much or more than the value of the property) the trustee still has a legal interest in the property. It is just currently not worth anything. We use the word “currently” for a reason. What happens then? If there is equity in a property at the time of the bankruptcy, the trustee will move to sell the property to realise that valuable interest. That sale may be to a co-owner or on the market. The guiding principle behind this is that the asset (the equity) should be realised as soon as practical for the benefit of the estate’s creditors. But what if there is no equity at that time? Does the trustee just walk away? • T he trustee will not move to sell the property because there is no equity. • T he bankrupt and the co-owner will generally keep living in the property and maintain the mortgage. • T he trustee will notionally attribute the mortgage payments from the bankrupt and the co-owner as rent for his or her share of the property. • T he interest stays vested in the trustee. From time to time the trustee will recalculate the equity position. Given that the mortgage is being paid down and the value of the property may be rising, it is not uncommon for significant equity to be generated over time. At some point the trustee will be able to realise it commercially. Remember that the trustee still has a legal (now valuable) interest in the property. We have a number of recent cases where this has occurred. Two are worth mentioning. DEALING WITH REAL PROPERTY AFTER DISCHARGE It is commonly known that a bankrupt’s real property is a divisible asset in their bankrupt estate. It vests in the same way as all other divisible property, but has the quirk of legal title registration not found in most other assets. Trustees in bankruptcy will generally have to ‘enter transmission’, which is transferring the legal title to their name to enable them to sell the property under their own signature. In one case the husband and bankrupt wife owned a property. At the time of the bankruptcy there was minimal equity and we offered to sell the estate’s legal interest in the property to the husband for that amount. He declined to buy it at that time. Three years later the value of the equity in the property had increased significantly. The husband recently paid the estate $25,000 to buy the estate’s interest. This was ten times the amount he would have had to pay three years ago. Similarly in another estate, two years after discharge there was finally sufficient equity to be realised commercially. The co-owner was surprised that our interest was not extinguished at discharge, even though we had written to him at the time clearly stating that it would not. It cost him about $40,000 to buy the estate’s interest to save the house being sold. Like every other asset, the discharge of the bankrupt will not affect the trustee’s interest and their ability to realise the property. The revesting provisions are quite clear that the trustee has at least six years after discharge (that is nine years from the start of the bankruptcy) to deal with property without having to seek extensions to do so. In these and several other cases, the coowners could have quite rightly bought our interest in the property at a greatly lower price years before they eventually did, but believed that we would never be in a commercial or legal position to enforce our interest in the property. By Michael Peldan Partner, Worrells Brisbane Worrells Plain Talk e-Update October 2011 83 WHAT HAPPENS WHEN A MEMBER OF A SELF MANAGED SUPER FUND BECOMES BANKRUPT? 3 WHAT HAPPENS WHEN A MEMBER OF A SELF MANAGED SUPER FUND BECOMES BANKRUPT? For the first time since the inception of the superannuation guarantee legislation twenty years ago there are now more funds tied up in SMSF’s than are tied up in the larger industry funds. At the same time bankruptcy numbers remain high, so it is timely to look at the interaction of these two elements. Most SMSF are managed by corporate trustee, and the relevant legislation requires all members of the SMSF to be a director of that corporate trustee. But a difficulty arises when a member becomes bankrupt as the Corporations Act prohibits a bankrupt from acting as a director of any company. Further, under the superannuation legislation a bankrupt is a “disqualified person” and cannot take part in the management of a superfund. Clearly if a bankrupt cannot be a director of the trustee of a SMSF he also cannot be a member of that fund, and his entitlements will need to be otherwise dealt with. But the good news is that there is a six month period of grace during which this issue can be addressed. The period of grace applies only to dealing with the bankrupt’s entitlement. That is there is no period of grace in relation to acting as a director. This means that if the bankrupt is the sole member of the SMSF and the sole director of the trustee company he will need to arrange for a new director to be appointed quickly. 84 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU The most obvious way to deal with a bankrupt’s interest in a SMSF is simply to have that interest transferred to a larger fund, within the six month period of grace. This is not a transaction which the trustee in bankruptcy can frustrate, unless he or she believes that that interest includes contributions which should not have been made and which are recoverable under section 128B of the Bankruptcy Act (see our November 2008 e Update for a discussion on section 128B). Another option is for the members entitlements to be paid out, assuming that this is permissible under the relevant deed and legislation. A superannuation payout made after bankruptcy is exempt from realisation in the bankruptcy. If the entitlement is taken as a pension, it will be included as income of the bankrupt when the trustee assesses whether or not income contributions are payable. Again the provisions of section 128B may apply in some circumstances. Usually the shares in the trustee company will be held by the bankrupt and will therefore vest in the trustee of the bankrupt estate. But those shares will have no commercial value and the bankruptcy trustee will cooperate in a transfer to any nominated third party. In summary those involved with SMSFs have three factors to consider: a.A bankrupt’s entitlement in a SMSF cannot remain as part of that fund when he can no longer be a director. b.In some circumstances all or part of the bankrupt’s interest in his super may be recoverable by the trustee if contributions have been made in voidable circumstances. c.Lump sum payments made to a bankrupt after the start of the bankruptcy are exempt but pensions will be treated as income for income contribution purposes. By Chris Cook Partner, Worrells Brisbane Worrells Plain Talk e-Update February 2012 worrells articles 3 A TALE OF THREE PROPERTIES Many times, however, we find that properties that were owned by the soon-to-be-bankrupt in the period leading up to commencement of the bankruptcy are no longer in their names when we are appointed. It is these transfers of property, particularly the property transfers in three separate estates we are handling and which led to three different outcomes, which are examined in this article. There is usually nothing wrong with a bankrupt selling a property in the months before bankruptcy, as long as it is for true value and the consideration is accounted for properly. The acid test of whether this happens is whether the creditors are disadvantaged because of the sale and the ultimate use of the funds. For example, a trustee could not complain about the sale of a property before bankruptcy for true value where all of the money went to the mortgagee holding security over that property. The creditors have not been disadvantaged. However sometimes properties are sold undervalue; sometimes for “love and affection” (yes, people still try this one); and sometimes the consideration, although properly calculated, is not paid. The three cases mentioned in this article highlight the extremes of these positions. In the first case, a quarter share in a property was transferred a few weeks before the bankruptcy commenced. In obtaining a copy of the transfer form , it indicated that the quarter share was transferred for $130,000 – and stamp duty was duly paid on that amount. We obtained a valuation of the property which showed that $130,000 was more than a fair value for that share. So far so good, but was the consideration actually paid? There was no indication of this happening. We then obtained details of the mortgaged debt. The debt secured against the property was for more than the value of the property. The consideration ‘paid’ was the assumption of the mortgage. When we considered the acid test, that the share had no equity (the value being less than the secured debt), we could not show that anything of value left the grasp of the creditors when title was transferred. We could not see any commercial recovery for the estate as the secured creditor was always going to get the proceeds of any sale. The second case was only slightly different. The half share in the property had been transferred under the same circumstances and the assumption of debt was used as the consideration. The transfer form had both a valuation and the formal agreement to assume the secured debt attached. The valuation obtained by the parties checked out, but the level of the debt secured on the property was $80,000 less than the valuation. That is, $40,000 of equity (the equity in the half-share) was transferred but no consideration was paid for that equity. Remarkably the documents attached to the transfer clearly showed this discrepancy. We issued a demand for the $40,000 that should have been an asset in the estate. A tale of three properties In last month’s e-Update we detailed some of our dealings with real properties in bankruptcy estates. The central message was that trustees retained a vested interest in real property and can deal with that interest late in the bankruptcy period and up to six years after the bankrupt has been discharged. The third case is a combination of the last two with a twist. The share in the property was transferred for a sum based on a valuation. That valuation checked out. The assumption of the mortgaged debt was again the major consideration paid, and the secured debt was again less than the value of the property. Equity had been transferred but not obviously paid for at the time the bankruptcy commenced. The twist was that the new owner of that share (a relative of the bankrupt) had a bank cheque in the name of the old owner for the amount of the equity transferred and was ready to hand that across to us when we were appointed. They had agreed that he would hold it until the trustee was appointed. We quickly determined that the amount of the cheque would have been the amount that the estate would have received if the property had remained in the estate (probably more if selling costs were taken into account). The new owner owed the old owner the money – really he was a debtor in the estate – and he happily paid it to us. This is a very rare occurrence. If the message in our previous article was that a trustee’s rights survive the duration of the bankruptcy and discharge, the message of this article is that trustee’s still have some rights of recovery if the property is transferred away before the bankruptcy commences. By Michael Peldan Partner, Worrells Brisbane Worrells Plain Talk e-Update November 2011 85 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU GLOSSARY 87 GLOSSARY GLOSSARY A C Annual Meeting & Annual Report Caveat Liquidators of Voluntary Windings Up (whether Members or Creditors Voluntary Wings Up) are required under section 508 of the Corporations Act to either [latin: Let him beware] (i)hold an annual meeting of members and creditors of the company; or (ii)lodge an annual report with ASIC detailing the position of the winding up. ASIC The Australian Securities and Investments Commission A notice, usually on a register, to place the public on notice that no action of a certain kind may be taken without first informing the person who gave notice. The most common use is placing a notice on the title of Real Property to protect an interest in that property. Close Associate (Corporations Act) of a director means: (a)a relative or de facto spouse of the director; or Associated Entity (b)a relative of a spouse, or of a de facto spouse of the director. In relation to a person, means: Committee of Creditors or Inspection (a)an entity (other than a company) that is, or has been, associated with the person; or A smaller body of creditors or its representatives (usually 3 to 7) that have been elected by the main body of creditors to represent them at meetings with the appointee to the insolvency estate. The committee has the same powers as the general body of creditors in making resolutions at meetings. (b)a company that is, or has been, associated with the person at a time when the company is, or was, as the case may be, a private company. B Bankrupt Composition A person: One of the two types of agreements that can be made between a bankrupt and their creditors (under section 73 of the Bankruptcy Act) during bankruptcy. Acceptance of a proposal for a Composition will annul the bankruptcy. (a)against whose estate a sequestration order has been made; or (b)who has become bankrupt by virtue of the presentation of a debtor’s petition and remains undischarged (an undischarged bankrupt). A discharged bankrupt is a bankrupt who has been discharged from bankruptcy under Section 149 of the Bankruptcy Act. Bankruptcy Notice A notice issued by the Official Receiver to a debtor under section 41 of the Bankruptcy Act requiring the debtor to satisfy a Judgment debt with a specific time period. 88 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU Creditor An entity that is owed money by another. Creditor’s Petition An application (a petition) to the Courts to place a debtor into an insolvent estate (bankruptcy for a person or liquidation for a company) under an Order of the Court. The application is usually made by a creditor, or more than one creditor jointly, that has an unsatisfied Bankruptcy Notice or Statutory Demand. The application must be heard by the Courts. Creditors’ Voluntary Winding Up Is the winding up of an insolvent company under Part 5.5 of the Corporations Act. This type of winding up may be commenced through the Voluntary Administration provisions of the Corporations Act, or through a meeting of the company’s members through the voluntary winding up provisions. D Debt Agreement Means an agreement under section 185H of the Bankruptcy Act resulting from the acceptance of a debt agreement proposal under Part IX of the Bankruptcy Act. Debtor An entity that owes money to another (a creditor). Debtor’s Petition Means a petition presented by a debtor against himself or herself and includes a petition presented against a partnership in pursuance of section 56 of the Bankruptcy Act and a petition presented by joint debtors against themselves in pursuance of section 57 of the Bankruptcy Act. Deed of Company Arrangement Means a deed of company arrangement executed under Part 5.3A of the Corporations Act or such a deed as varied and in force from time to time. It is a formal arrangement entered into between an insolvent company and its creditors to resolve it outstanding debt without going into liquidation. Dependant In relation to a bankrupt means a person who: (1)resides with the bankrupt; and (2)does not receive any income from a person other than the bankrupt or a spouse or former spouse of the bankrupt and: (3)is wholly dependant on the bankrupt for economic support or partially dependant on the bankrupt and partially on the spouse or former spouse. PERSONAL INSOLVENCY A person who: (a)is appointed to the position of director; or (b)is appointed to the position of an alternate director and is acting in that capacity regardless of the name that is given to their position. Unless the contrary intention appears, it also includes a person who is not validly appointed as a director, if: (a)they act in the position of a director; or (b)the director of the company or body are accustomed to act in accordance with the person’s instructions or wishes. Director Penalty Notice A notice served by the Commissioner of Taxation on a director regarding a remittable amount, under the Prompt Recovery Regime. Disclaiming a Lease The process where a liquidator of bankruptcy trustee formally terminates an ongoing lease (or other financial obligation), thereby activating the right of the financier to deal with the financed asset. Doctrine of Exoneration A principle in equity law that deals with the rights of co owners of property where one co owner has used that property as security for a loan that solely benefited that person. The Doctrine makes assumptions about the roles of principle and surety over the loan and the security. Dividend A payment from an insolvent estate on a proved claim in that estate. Dividends are paid under the provisions of the Corporations Act or Bankruptcy Act in the set priorities for different classes of creditors and “pro rata” to the creditors within the class. E Eligible Applicant (in relation to Public Examinations) In relation to a corporation, means: (a)ASIC; or (b)a liquidator or provisional liquidator of the corporation; or (c)an administrator of the corporation; or (d)an administrator of a deed of company arrangement executed by the corporation; or (e)a person authorised in writing by ASIC to make: (i)applications under the Division of Part 5.9 in which the expression occurs; or (ii)such an application in relation to the corporation. Employee Entitlements Amounts owing the employees of the insolvent, usually made up of outstanding wages, commissions etc; outstanding leave entitlements and redundancy payments. These entitlements are generally priority claims in insolvent estates, but the level of that priority and the amount of the etitlement that is priority varies in certain circumstances. Entity Means a natural person, company, partnership or trust. Examinable Affairs In relation to a bankrupt means, (a)the persons dealings, transactions property and affairs; and (b)the financial affairs of an associated entity of the person, in so far as they are, or appear to be, relevant to the person or to any of his or her conduct, dealings, transactions, property and affairs. In relation to a company means: (a) the promotion, formation, management, administration or winding up of the corporation; or (b)any other affairs of the corporation (including anything that is included in the corporation’s affairs because of section 53); or (c)the business affairs of a connected entity of the corporation, in so far as they are, or appear to be, relevant to the corporation or to anything that is included in the corporation’s examinable affairs because of paragraph (a) or (b). GLOSSARY Director F Floating Charge Includes a charge that conferred a floating security at the time of its creation but has since become a fixed or specific charge. G GEERS The General Employee Entitlements & Redundancy Scheme that provides fuding for the payment of employee entitlements. It is part of the Australian Government’s Department of Employment and Workplace Relations. This scheme provides funding for the payment of certain entitlements left outstanding in liquidations and bankruptcies. I Incapacitated Entity An entity that is in liquidation or receivership, or which has a representative appointed; and a person that in bankrupt or who has entered into some arrangement under the Bankruptcy Act. Income Contribution Assessment The assessment of a bankrupt’s income by their Trustee to determine whether the bankrupt is liable under the Bankruptcy Act to pay a contribution to their estate. Indemnity An enforceable agreement by one person to pay another person sums of money that are owed, or may become owed, due to a costs, loss or damage, especially in the form of financial compensation. 89 GLOSSARY GLOSSARY Insolvent A state of not being able to satisfy ones debts as and when they become due and payable. Insolvency can also be deemed for non-satisfaction of a Bankruptcy Notice or a Statutory Demand. Insolvent under Administration Means a person who: (a)under the Bankruptcy Act 1966 or the law of an external Territory, is a bankrupt in respect of a bankruptcy from which the person has not been discharged; or (b)under the law of an external Territory or the law of a foreign country, has the status of an undischarged bankrupt; and includes: (c)a person any of whose property is subject to control under: (i)section 50 or Division 2 of Part X of the Bankruptcy Act 1966 ; or (ii)a corresponding provision of the law of an external Territory or the law of a foreign country; or (d)a person who has executed a personal insolvency agreement under: (i)Part X of the Bankruptcy Act 1966 ; or (ii)the corresponding provisions of the law of an external Territory or the law of a foreign country; where the terms of the agreement have not been fully complied with. ITSA Insolvency and Trustee Service Australia 90 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU J M Joint Tenancy Maintenance Agreement Ownership of land by two or more persons who have identical interests in the whole of the land. Joint Tenancy can arise only when 4 conditions are satisfied: Under the Bankruptcy Act means a maintenance agreement, within the meaning of the Family Law Act 1975, that has been registered in or approved by a Court in Australia or an external territory or any other agreement with respect to the maintenance of a person that has been so registered or approved. 1.Each joint tenant is entitled to possession at the same time; 2.The interests must be identical 3.Each must have the same title 4.The interests must exist at the same time. Judgment Means a judgment, decree or order, whether final or interlocutory, obtained by way of a decision of a Court, made pursuant to an application to the Court to make that decision. L Lease A contract under which the lessor grants the lessee exclusive possession of the property for an agreed period, usually in return for rental and, sometimes, a capital sum called the premium. These are to be distinguished from Chattel Mortgages that are a security over assets owned by the entity or person. Liquidation The process of winding up a company’s affairs, having a liquidator appointed to the company, whether it is solvent (members voluntary winding up) or insolvent (creditors voluntary winding up or Official Liquidation by the Courts). Liquidator A personal able to be appointed to oversee the winding up of a company. See “Registered Liquidator” and “Official Liquidator”. Members Voluntary Winding Up This is the process of winding up a solvent company, done when the members no longer wish to retain the company structure. There can be a number of reasons for the members wanting to do this, but usually it is because the company has reached the end of its useful life. This is the only process for fully winding up the affairs a solvent company. It ensures that outstanding creditors are paid in full and protects the members’ interests while the company structure is dismantled. N National Personal Insolvency Index (NPII) In Bankruptcy, means the Index of that name established under the Bankruptcy regulations Net Value In relation to property, means: (a)if the property is unencumbered: the value of the property; (b)if the property is encumbered and the unencumbered value of the property exceeds the amount or value of the encumbrances: the amount of the excess; or (c)in any other case: a nil amount. PERSONAL INSOLVENCY Personal Insolvency Agreement (in Bankruptcy) The name of the agreement that can be made between a debtor (being a real person) and their creditors under Part X of the Bankruptcy Act. In relation to an entity, in relation to a time, means: (a)if the entity is a trust and the total value of the trust property as at that time exceeds the total of the amounts of the trustee’s liabilities as at that time (other than liabilities constituted by the rights of persons as beneficiaries under the trust): the amount of the excess; (b)if the entity is not a trust and the total value of the entity’s assets as at that time exceeds the total of the amounts of the entity’s liabilities as at that time: the amount of the excess; or (c)in any other case: a nil amount. O Objections to Discharge A process where a Trustee in Bankruptcy may apply for the extension of the term of a bankruptcy (effectively keeping someone bankrupt for an extended period). Objections to Discharge must be based on some ‘Ground’ and - depending on that Ground - the extension may be for 2 or 5 years. This process is possible under Division 2 of Part VII of the Bankruptcy Act. Official Liquidator Means a person registered as an official liquidator under section 1283 of the Corporations Act. (Also see “Liquidator” and “Registered Liquidator”) P Part IX Part IX (Nine) of the Bankruptcy Act, dealing with the administration of smaller insolvent estates outside bankruptcy. Part X Part X (Ten) of the Bankruptcy Act, dealing with administration of insolvent estates outside of bankruptcy leading to a proposal by a debtor to their creditors to enter into a Personal Insolvency Agreement. Preferential Payment A payment(s) to a creditor made under certain circumstances whilst the payer is insolvent, where that payment is recoverable from the recipient by a Liquidator of a company or a Trustee of a Bankrupt Estate. Proof of Debt Specific forms under the Corporations Act and Bankruptcy Act for a creditor to prove the existence and quantum of their claim against the insolvent estate in the estate for voting and dividend purposes. The forms have to be in accordance with form 535 (or form 536 for employee claims) under the Corporations Act and Form 8 under the Bankruptcy Act. Proxy The agency, function, or office of a deputy who acts as a substitute for another. Authority or power to act for another by a document giving such authority. In Insolvent estates, the appointment of a proxy is performed by the creditor for attendance at meetings of creditors under the appropriate forms. Public Examination In relation to a company: a common name given to the process of examining parties that are connected to the company about the affairs of the company. These examinations are conducted by the Courts under section 596A and section 596B of the Corporations Act. In relation to a bankrupt: a common name given to the process of examining parties that are connected to the bankrupt about the affairs of the bankrupt. These examinations are conducted by the Courts under section 81 of the Bankruptcy Act. Q GLOSSARY Net Worth Quorum Bankruptcy Act In relation to the Bankruptcy Act, a quorum is constituted by: (a)The presence in person of the trustee (or the trustee’s representative); and (b)A creditor, or a proxy or attorney of a creditor, participating in person or by telephone. Note: A meeting requires at least 2 persons. Therefore the person covered by paragraph (2)(a) cannot also be the proxy or attorney of the creditor covered by paragraph (2)(b). R Receivers and Managers A receiver of property of a body corporate is also a manager if the receiver manages, or has under the terms of the receiver’s appointment power to manage, affairs of the body. Registered Liquidator Means a person registered as a liquidator under subsection 1282(2) of the Corporations Act. Registered Trustee Means a person that has been registered to act as a Trustee under Division 1 of Part VIII in appointments under the Bankruptcy Act. Resolution A motion moved at a meeting of creditors (or a committee)that is approved by the required majority of creditors (more than 50% in number and 50% in value) voting for the motion. For a Special Resolution under the Bankruptcy Act a majority of 50% in number and 75% in value is required. The Corporations Act has no special resolutions. 91 GLOSSARY GLOSSARY S Scheme of Arrangement One of the two types of agreements that can be made between a bankrupt and their creditors (under section 73 of the Bankruptcy Act) during bankruptcy. Acceptance of a proposal for a scheme of arrangement will annul the bankruptcy. Section 73 Arrangements Arrangements that are made by bankrupts with their creditors to provide for the annulment of the bankruptcy and the creation of a formal obligation for the ex-bankrupt to satisfy their creditors (wholly or in part) over time. Sequestration Order An Order made by the Federal Court at the hearing of a creditor’s petition against a personal debtor (a real person as opposed to a company) that makes that person an undischarged bankrupt. Solvent Means being able to pay all ones debts as and when they fall due. Special Resolution Subrogation The substitution of one person for another so that the person substituted succeeds to the rights of the other. T Tenants in Common Equitable ownership of land by two or more persons in equal or unequal undivided shares. The share does not automatically pass to the other owners under a right of survivorship (as with joint tenancy). Trustee (in Bankruptcy) Means: (a)in relation to a bankruptcy: the trustee of the estate of the bankrupt; (b)in relation to a Personal Insolvency Agreement under Division 6 of Part IV: the trustee of the Personal Insolvency Agreement; (c)in relation to the estate of a deceased person in respect of which an order has been made under Part XI: the trustee of the estate; or (e)in relation to a trust: (i)if only one person is a trustee of the trust: that person; or Under the Bankruptcy Act, means a resolution passed by a majority in number and at least threefourths in value of the creditors present at a meeting of creditors and voting on the resolution. (ii)if 2 or more persons are trustees of the trust: any one or more of those persons; Statutory Trustee U An appointment under a state’s property law legislation (for example: section 38 of the Qld Property Law Act) of Trustees to be held by them on the statutory trust for sale or on the statutory trust for partition. Undervalued Transaction Subordinate To treat as less important. In relation to a claim in a insolvent estate: to place it behind other claims in priority. 92 WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS WORRELLS.NET.AU in his, her or its capacity as a trustee, or in their respective capacities as trustees, as the case may be, of the trust. A transfer of property from a person who later becomes bankrupt where the transferee gave no consideration for the transfer or gave consideration of less value than the market value of the property. Undervalued transaction may be voided under section 120 and associated sections of the Bankruptcy Act. V Virtual Meetings The common name given to the process of trustees passing a single Creditors’ Resolution without calling a physical meeting of creditors - done under section 64ZBA of the Bankruptcy Act. X X (Part X) Part X (Ten) of the Bankruptcy Act, dealing with administration of insolvent estates outside of bankruptcy leading to a proposal by a debtor to their creditors to enter into a Personal Insolvency Agreement. PLAIN TALK. STRAIGHT ANSWERS. FAST RESULTS. brisbane IPSWICH GOLD COAST MAROOCHYDORE Level 8, 102 Adelaide Street, Brisbane QLD 4000 GPO Box 2228 Brisbane QLD 4001 Level 1, 80 Brisbane Street, Ipswich QLD 4305 PO Box 779 Ipswich QLD 4305 P 07 3225 4300 F 07 3225 4311 [email protected] P 07 3280 6200 F 07 3280 6211 [email protected] Level 5, HQ@Robina 58 Riverwalk Avenue, Robina Qld 4226 PO Box 4448 Robina Town Centre QLD 4230 Suite 4, Level 3, Bryant House 26 Duporth Avenue, Maroochydore QLD 4558 PO Box 1479 Maroochydore QLD 4558 P 07 5553 3444 F 07 5553 3455 [email protected] P 07 5459 1000 F 07 5459 1011 [email protected] NOOSA SYDNEY ERINA CANBERRA Suite 12, Noosa Professional Office 1 Lanyana Way, Noosa Heads QLD 4567 PO Box 1479 Maroochydore QLD 4558 Suite 3, Level 3, 350 George Street, Sydney NSW 2000 GPO Box 4956 Sydney NSW 2001 Suite 3.11, 4 Ilya Avenue, Erina NSW 2250 PO Box 3307 Erina NSW 2250 Suite 13, Level 1, 143 London Circuit, Canberra City ACT 2601 GPO Box 214 Canberra ACT 2601 P 07 5447 3766 F 07 5447 3799 [email protected] P 02 9249 1200 F 02 9249 1211 [email protected] P 02 4365 7525 F 02 4365 7566 [email protected] P 02 6287 6000 F 02 6287 6011 [email protected] MELBOURNE BALLARAT BENDIGO Level 12A, 45 William Street, Melbourne VIC 3000 GPO Box 1834 Melbourne VIC 3001 15 Dawson Street South, Ballarat VIC 3350 328 Lyttleton Terrace, Bendigo VIC 3550 P 03 5364 2936 F 03 5364 2911 [email protected] P 03 5444 3783 F 03 5364 2911 [email protected] P 03 9613 5500 F 03 9614 3233 [email protected]
© Copyright 2024