A consultant is overseeing the reorganisation of a group of companies. The companies go into liquidation. The liquidator holds the consultant liable for the creditors’ losses. These losses consist largely of tax debts. The adviser believes that these tax debts are incorrect and wants the tax collector to withdraw them. Can a third party challenge another person’s tax debt?
Bankruptcy and the Peeters/Gatzen claim
In 2006, seven companies went into liquidation. The Receiver issued additional assessments for payroll tax and turnover tax. The liquidator held the adviser liable on behalf of the collective creditors for unlawful conduct during the reorganisation. This is a so-called Peeters/Gatzen claim: the liquidator is not claiming on behalf of the estate, but on behalf of all creditors jointly. The Court of Appeal upheld the claim and ordered the adviser to pay damages. The Supreme Court dismissed the appeal in cassation.
New documents have come to light
Years later, the adviser obtains documents which appear to show that the companies had no VAT liabilities at all. He attempts to have the judgement set aside. The Supreme Court quashed the rejection of that application and remanded the case. Ultimately, the adviser and the liquidator reached a settlement. But that was not the end of the matter. The adviser also wanted the tax collector to withdraw the tax assessments.
Recipient acknowledges a minor error
The adviser asks the Receiver to review the tax assessments to determine whether the tax is materially due. The Receiver acknowledges that an amount of €14,006 was wrongly not set off, but rejects the request in all other respects. In his view, the tax assessments are not manifestly incorrect. The adviser takes the matter to the civil court and claims a revocation of the assessments plus damages. The district court and the court of appeal dismiss the claims.
U-turn on competition for recovery
The Supreme Court has set out the rules. If the Receiver holds someone liable for another person’s tax debt, that person may challenge the validity of the debt before a civil court. What is new is that this also applies in cases of competing claims, i.e. where the Receiver and another creditor are both seeking recourse against the same debtor. On this point, the Supreme Court has explicitly reversed its 2011 judgment in Dumatrust v Receiver.
Advisor comes away empty-handed
However, the adviser does not fall into any of these categories. He has not been held liable by the Receiver and there is no conflict of claims. It is the liquidator who has held him liable. In such a case, the adviser must settle the matter with the liquidator, not with the Receiver. The Receiver acts unlawfully only if, at the time of lodging or enforcing the claim, he knew, or ought to have known following an investigation, that the tax assessments were incorrect. This has not been established in this case. The Supreme Court dismisses the appeal in cassation.