The Standings of Tax Receivables in Bankruptcy Cases : A Study on Managing and Settling Assets

The state's privilege right to tax receivables in bankruptcy cases is regulated differently under various laws and court decisions in Indonesia. In general, tax receivables in bankruptcy have privilege position over other creditors, including secured creditors such as banks, mortgage holders, fiduciary guarantees and finance companies, preferential creditors and concurrent creditors. The creditor’s tax debt to the state should be paid first before any payment to other creditors. However, the Director General of Tax under the Ministry of Finance of the Republic of Indonesia often faces problems in claiming the payment as the Ministry claims for the payment are always rejected by the Court. Each of the existing legal rules and decisions provides different answers to this problem, resulting in legal uncertainties. This research is conducted using the normative juridical approach and supported by the empirical analysis. The data collection is conducted by document studies and supported by court decisions. This research aims to inquire and analyse the position of tax receivables in the distribution of bankruptcy estate of debtors among other creditors, the role of the curators, both state and private curators, in the bankruptcy estate distribution in order to find a legal solution to the aforementioned issue according to the normative legal provisions that apply.

Bankrupt Innovative Firms

We study how innovative firms manage their innovation portfolios after filing for Chapter 11 reorganization using three decades of data. We find that they sell off core (i.e., technologically critical and valuable), rather than peripheral, patents in bankruptcy. The selling pattern is driven almost entirely by firms with greater use of secured debt, and the mechanism is secured creditors exercising their control rights on collateralized patents. Creditor-driven patent sales in bankruptcy have implications for technology diffusion—the sold patents diffuse more slowly under new ownership and are more likely to be purchased by patent trolls. This paper was accepted by Gustavo Manso, finance.

23. Loan capital—secured creditors and company charges

The majority of companies rely on commercial borrowing—loan capital—from high street banks and financial institutions. The lender will need security to cover the amount lent. This chapter discusses: company charges, fixed and floating charges, the approach to categorisation, registration of charges, and enforcement of a floating charge. The key concern for the creditor is to obtain the maximum security while the company is concerned to have the maximum freedom to act. The distinction between fixed and floating charges is considered and the characteristics of a floating charge are discussed with particular regard to charges on book debts. The chapter also considers the registration requirements with the registrar of companies.

OSTVARIVANjE ZALOŽNIH PRAVA U STEČAJNOM POSTUPKU IZ VREDNOSTI OPTEREĆENE IMOVINE

The article analyzes the legal provisions, legal practice, as well as the opinions of jurisprudence on creditors with rights to separate settlement and pledge creditors as two special categories of secured creditors. The opening of bankruptcy proceedings over the owner of the real estate under the mortgage or of the movable property under pledge has a significant impact on the process of exercising rights and the position of secured creditors. The bankruptcy legal framework in the Republic of Serbia, on the one hand, limits their rights, and on the other hand, provides significant guarantees, by prescribing more specific institutes that further improve the position of secured creditors in the sale of encumbered assets of the bankruptcy debtor, which is the subject of this paper. First of all, the rules that condition the leasing of the encumbered asset of the bankruptcy debtor with the consent of creditors with rights to separate settlement and pledge creditors are considered. Also, the influence of the moratorium on the realization of liens by settling claims from the value of encumbered asset is presented, as a possibility of abrogation of the legal prohibition of individual execution. The procedure of the realization of the preemptive right on the subject of the right to seek separate settlement and on the subject of lien, in the case of the method of sale by direct agreement, as well as the application of the credit bidding institute (possibility for the creditor to offset his secured claim with the purchase price, in case he is the best bidder), have been explained.

Lot Forming within the Framework of Pledged Property Sale in Bankruptcy

The article is devoted to a comprehensive study of joint sale’s of pledged and non-pledged property mechanism. Under this procedure, secured creditors are deprived of their special rights provided by Article 138 of the Russian Insolvency Law. The author pays special attention to the development of an approach that allows to maintain a balance of interests of all creditors.

Regspraak: Novasie en delegasie van skuld – hoe raak dit die versekering van die tersake skuld?

Personal rights may be transferred by means of cession, and, in such an instance, the cedent (creditor) does not need the debtor’s permission, but once the debtor has been informed, the debt is redeemed only if he performs against the cessionary. If however, someone owes a debt, he (the debtor) can free himself of the obligation only if he redeems the debt, if he is released, or through the running of prescription. But sometimes it might be necessary that a restructuring of someone’s debts takes place or the debtor may want to be replaced with someone else who is willing to take over his obligation. This can be done only with the cooperation and agreement of the creditor. In such a case the debtor delegates his obligation to another person, who then becomes the new debtor of a new debt – the creditor relinquishes his right against the old debtor and accepts the new debtor and the new debt. The old debt no longer exists. It is also possible to rearrange the debt and create a new obligation which extinguishes the old debt – a novation takes place. This contribution starts with a discussion of these general principles and particularly the role that they (should) play when one is dealing with a secured debt which the debtor wants to delegate or when novation comes into play. This leads into a discussion of Wilke NO v Griekwaland Wes Korporatief Ltd (1327/2019) 2020 ZASCA 182 (23 Dec 2020) and the judgments in the earlier courts in which the supreme court of appeal and the other courts did not consider the implications of delegation and novation on an underlying debt when that debt was secured. Delegation and novation extinguish the underlying debt and any security right fortifying that debt is thereby also extinguished because of the principle of accessority. If the creditor requires the new debt to be secured, a new security right needs to be established by meeting all the requirements for the establishment of such security whether it is a right of suretyship or a real security right. A creditor must carefully consider agreeing to a delegation or novation of a secured debt since the implication is that he loses his secured and preferential position, and, even with the creation of a new security right, he loses the ranking he initially held in the line of secured creditors when a right of mortgage, for example, is at stake – qui prior est tempore potior est iure (D 20 4 11pr).

The protection of the preemptive rights of separate and pledge creditors in the case of sales of encumbered property by a direct agreement

The article reviews the regulations of Republic of Serbia, domestic legal practice, as well as the opinions of jurisprudence on the exercise and protection of the preemptive rights of separate and pledge creditors in a bankruptcy proceedings. There has been clarified the legal nature of the preemptive right on the subject of the secured right or lien. There were also provided the details related to the significance of the right of a creditor to set off its secured claim with the purchase price, in the case of a creditor being the best bidder (credit bidding). The article aims to present the manner of exercise of preemptive rights in the case of the method of sales of encumbered property/assets by a direct agreement, as well as the legal instruments the secured creditors may use in the case of its violation. There have been analysed the rules of procedure per lawsuit for annulment of a sale due to the violation of the preemptive rights. The deadline for a lawsuit, the content of the lawsuit which protects the preemptive right as well as the damage compensation right were especially considered.

Notwendigkeit und Wirkungsweise unechter Massedarlehen zur Finanzierung der Betriebsfortführung

Continuation of companies as going concerns under insolvency conditions requires liquidity, in particular during the critical period of interim proceedings. In this regard, the author looks at the usual German practice of allowing the debtor to realise and use the proceeds of collateral for interim financing in exchange for new collateral (so called „unechte Massedarlehen“ or interim financing using and exchanging collateral). He examines whether the current law requires the need of secured creditors to specifically agree to such use and, if so, explains the content of such agreements. The compendium is aimed primarily at legal practitioners who are concerned with relevant financing issues after an insolvency proceedings has been commenced.

Protection of rights of secured creditors in the bankruptcy debtor assets sales procedure

Securing claims by way of real assets such as mortgage or chattel mortgage has great significance for the operation of banks and other economic entities. Opening bankruptcy proceedings over the owner of the real estate under mortgage or movable property under chattel mortgage has a significant impact on the process of exercising rights and the position of secured creditors. Bankruptcy framework in the Republic of Serbia limits their rights on the one hand, and provides extensive guarantees, on the other, by prescribing several specific institutes that additionally protect the rights of secured creditors in the procedures of bankruptcy debtor asset sales, which is the topic of this paper. Provisions of the Law have been analyzed, positions of the judicial practice as well as opinions of the jurisprudence on secured creditors as a special category. Special attention was paid to the impact of the legal prohibition of individual enforcement for the settlement of claims from the assets that are under any burdens as well as the cancellation of moratorium. Significance of the right of the creditor to offset its secured claim against purchase price has been explained in detail in case of the best bidder (credit bidding) as well as the legal preemptive right on the subject of secured right or lien, in case of sales method by direct agreement. Also, rules were considered that condition the possibility of leasing assets under burden of the bankruptcy debtor with the consent of secured creditors.