The North Netherlands District Court has dismissed a claim, in summary proceedings, for the partial remission of tax debts.
The case concerns a company which, following an initial restructuring in 2020, is restructuring its debt in 2022 by obtaining the consent of its unsecured creditors to a discharge in return for payment of 16.4% of their claims. Once the creditors’ declarations of consent have been received, the company applies to the Tax and Customs Administration’s receiver for remission of its tax debts on the basis of the same percentage.
Temporary guidance on remediation works
The recipient refused this on the basis of the Temporary guidelines on remediation works. Under these instructions, a request for remission will be granted if:
- the settlement amount offered to the recipient is substantial (both in absolute terms and in relation to the size of the tax liabilities);
- the percentage to be received is at least equal to that offered to unsecured creditors;
- the company is expected to be viable following restructuring.
Viable
One of the issues at stake in the proceedings before the District Court is whether the receiver is entitled to assess the company’s viability. Under the instructions, the viability of the business is presumed to exist if the entrepreneur submits a positive assessment of viability from an accountant (RA or AA) and the receiver sees no reason to investigate the viability further.
The company has submitted a statement from the AA. However, as substantial tax interests are at stake, the tax authority is nevertheless entitled to assess the company’s viability. The Court further considers that the AA’s report does not self-employed the company’s viability is evident. The AA has, in fact, based its conclusion, amongst other things, on the assumption that the company will be merged with another company within the group.