Viewpoint | Analysis of late fees in corporate bankruptcy business
Published:
2023-05-30
In recent years, the number of corporate bankruptcy cases has increased year by year. From accepting bankruptcy applications to declaring corporate bankruptcy, to corporate tax registration cancellation, a series of tax issues will be involved, which is easy to cause tax-related disputes. This paper discusses the problem of late fees involved in the business of enterprise bankruptcy. The nature of tax late fees formed before the acceptance of 1. bankruptcy cases. The Reply of the Supreme People's Court on the Issue of Whether the Claim for Confirmation of Claims by Tax Authorities on Late Fees Arising from Tax Arrears of Bankrupt Enterprises should be Accepted (Fa Shi [2012] No. 9) stipulates that the people's court shall accept the claim for confirmation of claims filed by tax authorities on late fees arising from tax arrears of bankrupt enterprises in accordance with the law. In accordance with the relevant provisions of the Enterprise Bankruptcy Law and the Tax Collection and Administration Law, the late fees incurred by the bankrupt enterprise due to the payment of taxes before the bankruptcy case is accepted are ordinary bankruptcy claims. Whether the social security late fees incurred before the acceptance of the 2. bankruptcy petition are bankruptcy claims. Article 3 of the (III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Enterprise Bankruptcy Law (hereinafter referred to as the (III) for Judicial Interpretation of the Enterprise Bankruptcy Law) stipulates that after the bankruptcy application is accepted, the overdue fine arising from the debtor's outstanding payment, including the overdue interest and labor insurance premium that should be doubled if the debtor fails to perform the effective legal document, The people's court will not confirm it. Article 61 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Enterprise Bankruptcy Cases (Fa Shi [2002] No. 23) stipulates that the following creditor's rights are not bankruptcy creditor's rights: (2) After the people's court accepts the bankruptcy case, the debtor fails to pay the overdue fine for the amount due, including the overdue interest and labor insurance premium that the debtor should double if he fails to implement the effective legal documents. This provision is consistent with the spirit of Article 3 of the above-mentioned (III) on Judicial Interpretation of Enterprise Bankruptcy Law. Notice of the Second Civil Trial Division of the Higher People's Court of Jiangsu Province on Printing and Distributing the Guidelines for the Trial of Bankruptcy Cases (Revised Edition) (Su Gao Fa Dian [2017] No. 794) holds that: "7. bankruptcy claims and the order of repayment ...... The following claims do not belong to bankruptcy claims: First, the administrative and judicial organs impose fines, fines and other related costs on the debtor. Second, the debtor's failure to implement the effective legal instrument should double the delay interest and the late payment of labor insurance premiums. Article 54 of the Notice of Shenzhen Intermediate People's Court on Issuing the Guidelines for the Examination and Determination of Creditor's Rights in Bankruptcy Cases (No. 5 [2017] of Shenzhen Intermediate People's Court) also holds that:" The following claims declared by creditors shall not be determined: (1) fines, fines and other related expenses imposed on the debtor by administrative and judicial organs; (II) late fees for delay interest and labor insurance premiums that should be doubled if the debtor fails to perform the effective legal documents; ...... "Both documents provide that" delayed interest and late fees are not bankruptcy claims ". In the case of the dispute over the confirmation of ordinary bankruptcy creditor's rights between the yi county tax bureau of the state administration of taxation and Huangshan zhiheng investment co., ltd. [case number:(2019) wan 1023 minchu no 363], the tax authorities believed that according to article 3 of the (III) on judicial interpretation of enterprise bankruptcy law, "after the bankruptcy application is accepted, the overdue fine arising from the debtor's arrears includes the overdue interest and labor insurance premium that the debtor should be doubled if the debtor fails to fulfill the effective legal documents, if a creditor declares as a bankruptcy claim, the people's court shall not confirm it", and the bankruptcy claim shall be confirmed at the point in time of bankruptcy acceptance. That is, the late payment of social insurance premiums prior to bankruptcy acceptance is a bankruptcy claim. However, the People's Court of Yixian County, Anhui Province held that the provisions of the law did not reverse the late fees and double the deferred interest paid before the bankruptcy application was accepted, which could be recognized as bankruptcy claims. The late payment of social insurance premiums is punitive and has a specific object of implementation. If it is determined to be a bankruptcy claim, it is all creditors who are actually punished, which is contrary to the original intention of the measure and the spirit of the bankruptcy law to protect all creditors fairly. In the end, the court dismissed the tax authorities' claims. There has been controversy over whether the social security late payment fee arising before the acceptance of the bankruptcy application is a bankruptcy claim, with some judicial precedents determining it as a bankruptcy claim and some judicial precedents not confirming it as a bankruptcy claim. China is not a case law country, and the details of each case vary widely, the above-mentioned case of the judgment point of view provides a new way of thinking, that is, "social insurance premium late fees with a punitive, with a specific object of implementation. If determined as a bankruptcy claim, the actual punishment is all creditors, contrary to the spirit of the bankruptcy law fair protection of all creditors." In the bankruptcy business, it is recommended that the administrator should attach great importance to the tax late fees involved in the bankruptcy business, actively communicate and coordinate with the competent tax authorities, and avoid tax-related disputes or other liability disputes as far as possible. Deal with tax issues in bankruptcy proceedings in compliance with the law, effectively avoid the risk of practice, and promote the smooth progress of bankruptcy business.
In recent years, the number of corporate bankruptcy cases has increased year by year. From accepting bankruptcy applications to declaring corporate bankruptcy, to corporate tax registration cancellation, a series of tax issues will be involved, which is easy to cause tax-related disputes. This paper discusses the problem of late fees involved in the business of enterprise bankruptcy.
The nature of tax late fees formed before the acceptance of 1. bankruptcy cases.
The Reply of the Supreme People's Court on the Issue of Whether the Claim for Confirmation of Claims by Tax Authorities on Late Fees Arising from Tax Arrears of Bankrupt Enterprises should be Accepted (Fa Shi [2012] No. 9) stipulates that the people's court shall accept the claim for confirmation of claims filed by tax authorities on late fees arising from tax arrears of bankrupt enterprises in accordance with the law. In accordance with the relevant provisions of the Enterprise Bankruptcy Law and the Tax Collection and Administration Law, the late fees incurred by the bankrupt enterprise due to the payment of taxes before the bankruptcy case is accepted are ordinary bankruptcy claims.
Whether the social security late fees incurred before the acceptance of the 2. bankruptcy petition are bankruptcy claims.
Article 3 of the (III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Enterprise Bankruptcy Law (hereinafter referred to as the (III) for Judicial Interpretation of the Enterprise Bankruptcy Law) stipulates that after the bankruptcy application is accepted, the overdue fine arising from the debtor's outstanding payment, including the overdue interest and labor insurance premium that should be doubled if the debtor fails to perform the effective legal document, The people's court will not confirm it. Article 61 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Enterprise Bankruptcy Cases (Fa Shi [2002] No. 23) stipulates that the following creditor's rights are not bankruptcy creditor's rights: (2) After the people's court accepts the bankruptcy case, the debtor fails to pay the overdue fine for the amount due, including the overdue interest and labor insurance premium that the debtor should double if he fails to implement the effective legal documents. This provision is consistent with the spirit of Article 3 of the above-mentioned (III) on Judicial Interpretation of Enterprise Bankruptcy Law.
Notice of the Second Civil Trial Division of the Higher People's Court of Jiangsu Province on Printing and Distributing the Guidelines for the Trial of Bankruptcy Cases (Revised Edition) (Su Gao Fa Dian [2017] No. 794) holds that: "7. bankruptcy claims and the order of repayment ...... The following claims do not belong to bankruptcy claims: First, the administrative and judicial organs impose fines, fines and other related costs on the debtor. Second, the debtor's failure to implement the effective legal instrument should double the delay interest and the late payment of labor insurance premiums. Article 54 of the Notice of Shenzhen Intermediate People's Court on Issuing the Guidelines for the Examination and Determination of Creditor's Rights in Bankruptcy Cases (No. 5 [2017] of Shenzhen Intermediate People's Court) also holds that:" The following claims declared by creditors shall not be determined: (1) fines, fines and other related expenses imposed on the debtor by administrative and judicial organs; (II) late fees for delay interest and labor insurance premiums that should be doubled if the debtor fails to perform the effective legal documents; ...... "Both documents provide that" delayed interest and late fees are not bankruptcy claims ".
In the case of the dispute over the confirmation of ordinary bankruptcy creditor's rights between the yi county tax bureau of the state administration of taxation and Huangshan zhiheng investment co., ltd. [case number:(2019) wan 1023 minchu no 363], the tax authorities believed that according to article 3 of the (III) on judicial interpretation of enterprise bankruptcy law, "after the bankruptcy application is accepted, the overdue fine arising from the debtor's arrears includes the overdue interest and labor insurance premium that the debtor should be doubled if the debtor fails to fulfill the effective legal documents, if a creditor declares as a bankruptcy claim, the people's court shall not confirm it", and the bankruptcy claim shall be confirmed at the point in time of bankruptcy acceptance. That is, the late payment of social insurance premiums prior to bankruptcy acceptance is a bankruptcy claim. However, the People's Court of Yixian County, Anhui Province held that the provisions of the law did not reverse the late fees and double the deferred interest paid before the bankruptcy application was accepted, which could be recognized as bankruptcy claims. The late payment of social insurance premiums is punitive and has a specific object of implementation. If it is determined to be a bankruptcy claim, it is all creditors who are actually punished, which is contrary to the original intention of the measure and the spirit of the bankruptcy law to protect all creditors fairly. In the end, the court dismissed the tax authorities' claims.
There has been controversy over whether the social security late payment fee arising before the acceptance of the bankruptcy application is a bankruptcy claim, with some judicial precedents determining it as a bankruptcy claim and some judicial precedents not confirming it as a bankruptcy claim. China is not a case law country, and the details of each case vary widely, the above-mentioned case of the judgment point of view provides a new way of thinking, that is, "social insurance premium late fees with a punitive, with a specific object of implementation. If determined as a bankruptcy claim, the actual punishment is all creditors, contrary to the spirit of the bankruptcy law fair protection of all creditors."
In the bankruptcy business, it is recommended that the administrator should attach great importance to the tax late fees involved in the bankruptcy business, actively communicate and coordinate with the competent tax authorities, and avoid tax-related disputes or other liability disputes as far as possible. Deal with tax issues in bankruptcy proceedings in compliance with the law, effectively avoid the risk of practice, and promote the smooth progress of bankruptcy business.
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