Claims under a lease agreement in restructuring proceedings
Leasing is a form of financing business activity commonly used by entrepreneurs. No wonder, therefore, that receivables resulting from this agreement are so often encountered in restructuring proceedings. It should be noted, however, that leasing receivables cannot be treated in the same way in restructuring proceedings. Everything depends on whether we are dealing with financial or operational leasing.
LEASING AGAINST THE BACKGROUND OF LEGAL REGULATIONS
Leasing is not a concept which in the Polish legal system is understood in a uniform way – it functions slightly differently under the Civil Code, the Accounting Act or, finally, under the Acts on Income Taxes (PIT and CIT). As far as the assessment of the impact of restructuring proceedings on receivables under a lease agreement is concerned, the reference to the structure of operating and financial lease within the meaning of the PIT and CIT Acts will be of decisive importance. Slightly different understanding of operating and financial leasing also functions in the Accounting Act, and there are no isolated cases in the turnover when leasing in the meaning of the Accounting Act is a financial lease, whereas for tax purposes it is accounted for as an operating lease.
In the case of opening restructuring proceedings against a lessee being a party to an operating lease agreement, the list of receivables, apart from the receivables resulting from the instalments not paid before the date of opening restructuring proceedings, will also include a proportional part of the instalment for the settlement period during which the proceedings were opened (Article 77(2) of the Restructuring law). Unpaid, full instalments from before the opening day, together with a proportional part of the instalment in the settlement period in which the proceedings were opened, will be treated as claims covered by the agreement. The remaining part of the instalment for the settlement period and the instalments for subsequent full periods will constitute liabilities that will have to be met on an ongoing basis. Non-compliance with these obligations by the debtor gives the financing party the possibility to terminate the lease agreement pursuant to art. 256 sec. 3 of the Restructuring law.
The situation in which the debtor, as the lessee, is a party to a finance lease agreement (i.e. records the fixed asset at home and depreciates it for tax purposes) is different. In this case, according to art. 81 sec. 4 of the Restructuring law, the non-matured receivables from the lease agreement will be included in the list of receivables, however, their amount will be reduced by statutory interest (not higher than 6% per year), for the time from the date of opening the restructuring proceedings to the date of maturity of each future benefit, however, no longer than for two years. As a consequence, the list of receivables will include not only receivables arising before the opening date, but also receivables resulting from lease payments falling after the opening of the proceedings, which in their entirety will constitute receivables covered by the agreement.
DIFFERENCES IN THE POSSIBILITIES OF LEASING BY USERS IN RESTRUCTURING PROCEEDINGS
Different payment of lease receivables within the scope of their inclusion in the arrangement has a significant impact on the obligations of the debtor’s beneficiary related to the performance of the lease agreement in the restructuring proceedings. Not without significance is also the issue of admissibility of termination of the lease agreement by the financing party.
Pursuant to Art. 252.1 of the Restructuring law, from the date of opening the restructuring proceedings until the date of its termination or final and binding redemption, neither the debtor nor the administrator may perform the obligations resulting from the receivables covered by the arrangement. In the case of an operating lease, the debtor will not be able to pay instalments made before the opening of proceedings, and the financing party will not be able to terminate the agreement for this reason. However, if the beneficiary does not pay the instalments incurred after the date of opening the restructuring proceedings (not covered by the arrangement), then, according to art. 256 of the Restructuring law, the financing party has a full right to terminate the agreement without the prior consent of the creditors’ council.
Therefore, it is clear that the financing party will not be able to take advantage of such an opportunity in the case of financial leasing. In this case, all instalments under the agreement are covered by the arrangement and, as stated above, the debtor will not be able to pay such instalments.
EXPIRY OF THE LEASE DURING THE RESTRUCTURING PROCEDURE
In the practice of restructuring proceedings there are also situations when a lease agreement expires as a result of the lapse of time for which it was concluded. In these cases, the aforementioned prohibition on satisfying the receivables covered by the arrangement often takes revenge on the debtor. Regardless of whether we are dealing with an operating or a financial lease, the condition for buying out or transferring ownership of the leased item is usually payment of all lease instalments. If the debtor cannot pay the lease instalments, this condition cannot be met. In this case, it will not be able to force the lessor to transfer ownership of the leased asset and the lessor will not be interested in it either (as it will be able to transfer the leased asset for further lease or sell it).
FORM OF PROTECTION OF THE INTERESTS OF THE BENEFICIARY AND THE FINANCIER
It therefore appears that a favourable form of securing the interests of the beneficiary and the financier in the event that restructuring proceedings are opened against the beneficiary is to secure claims in the manner referred to in Article 151(2) and (3) BC. (e.g. a registered pledge on the debtor’s property). In such a case, the receivable in the part covered by the value of the object of collateral will not be covered by the agreement (which usually depends on the creditor), and the beneficiary will be able to satisfy the receivables resulting from the lease agreement and to purchase the object of lease for ownership.