Changes to reporting obligations in bankruptcy and restructuring proceedings

On 1 December 2021, some of the most important recent amendments to the bankruptcy and restructuring law introduced by the Act of 6 December 2018 on the National Register of Debtors (Journal of Laws 2019, item 55) and the Act of 28 May 2021 amending the Act on the National Register of Debtors and certain other acts (Journal of Laws 2021, item 1080) came into force.

The amendment includes changes regarding reporting obligations in bankruptcy and restructuring proceedings. The changes include the scope of reporting, its form, introduce a new institution of allegations of expenses, as well as expand the group of entities to which information from the reports is made available.

ASSUMPTIONS OF THE CHANGES

One of the basic duties of a trustee in bankruptcy proceedings, as well as a court supervisor and administrator in restructuring proceedings is regular reporting on the course of the proceedings.

The reporting serves primarily the judge-commissioner and creditors. The judge-commissioner supervises the activities of the trustee, court supervisor and administrator. On the other hand, creditors are interested in the current status of proceedings and the course of actions.

Some of the changes are related to the introduction of the National Debtors Register (Krajowy Rejestr Zadłużonych, KRZ) – an IT system for handling restructuring and bankruptcy proceedings and a register containing a structured set of information on entities that are insolvent or threatened with insolvency and announcements.

CHANGES IN THE BANKRUPTCY LAW

1. REPORTING

In cases in which the bankruptcy petition was filed after December 1, 2021, we will no longer find a trustee’s report of actions and an accounting report with justification. The legislature has abandoned accounting reports in favor of report reports, including:

(i) report on changes to the balance and composition of the bankruptcy estate during the reporting period, including the balance of cash means as at the beginning and end of the reporting period,

(ii) a report on changes to the list of claims and of those liabilities of the bankruptcy estate which have not been satisfied by the trustee during the reporting period,

(iii) a report on receipts and expenditures during the reporting period, the information on the balance of cash means in hand and in bank accounts as at the beginning and end of the reporting period.

Instead, the trustee’s action report became a report that included a description of the trustee’s actions during the reporting period, along with an explanatory statement.

The reports will no longer be submitted in paper form, but in electronic form in the system – KRZ. The trustee will submit the report as before on dates set by the judge-commissioner, at least once every three months. The legislature imposed an additional obligation on the trustee in the form of current recording of receipts and expenditures of the bankruptcy estate in the KRZ system (added Art. 160a of the Bankruptcy Law). Additionally, pursuant to art. 219a sec.1 of the Bankruptcy Law, on the basis of the announced decisions and documents, as well as information disclosed by the trustee on the liquidation of the bankruptcy estate, a register of data concerning the current composition and condition of the bankruptcy estate is created in the Register.

The reports will be available only to a participant in the bankruptcy proceedings via the KRZ system, while general information about the composition and status of the bankruptcy estate will be available in the KRZ (which serves as a register) to any interested party.

2. OBJECTIONS TO THE TRUSTEE’S EXPENSES

In the amended art. 168 sec. 5 of the Bankruptcy Law we find information about the possibility of filing objections to the trustee’s expenses. Objections should be filed within 30 days from the date of publishing in the KRZ system supporting the court proceedings an instruction about the time and manner of filing an objections. They are free of court fees and should meet formal requirements of a pleading.

The introduction of the objections to the trustee’s expenses superseded the approval by the judge-commissioner of the accounting report.

CHANGES IN THE RESTRUCTURING LAW

Changes introduced in the Restructuring Law are not as thorough as in the case of the Bankruptcy Law. The basic difference consists in lack of current reporting in the system about economic events concerning the arrangement and remedial estates. Creditors will obtain full knowledge about the economic situation of the arrangement and remedial estate only after the court supervisor and administrator submit reports to the case files.

1. REPORTING

The legislature has extended the scope of information contained in reports on actions of a court supervisor and administrator. The report on actions of a court supervisor will additionally contain information on the status of liabilities not satisfied by the debtor, and the report on actions of an administrator will contain information on the status of liabilities not satisfied by the administrator.

The scope of information provided in the accounting statement prepared only by the administrator has also been changed. In particular, a separate item for debtor’s expenses and expenses incurred by the administrator himself has been distinguished, and summary information on the state of receipts and expenditures at the beginning and end of the reporting period and ascending from the date of opening the proceedings, as well as on the state of income and expenses at the beginning and end of the reporting period and ascending from the date of opening the proceedings has been added.

2. OBJECTIONS TO THE ADMINISTRATOR’S EXPENSES

Also in restructuring proceedings, the legislator has introduced a new institution in the form of objections to the administrator’s expenses.

The objections must be filed within 30 days from the date of filing the report with the judge-commissioner (thus, differently than in bankruptcy proceedings), are free of court fees, and should meet the formal requirements of a pleading.

It should also be noted that the objections concern only the expenses incurred by the administrator and not by the debtor. However, a doubt arises as to what expenses are incurred by the administrator during the course of remedial proceedings. It should be remembered that as a rule, when opening remedial proceedings, the restructuring court deprives the debtor of its own management. It may, however, under Art. 288 (3) of the Restructuring Law, permit the debtor to exercise management over the whole or part of the enterprise to an extent not exceeding the scope of ordinary management. P. Zimmerman in the 7th edition of his Commentary to the Act on Restructuring Law takes the position that in the situation of revoked management, objections concern all expenses incurred by the administrator from the debtor’s property, whereas in the situation when the debtor was entrusted with own management within the scope of ordinary management, they will take place exceptionally, as they may concern only those expenses which were ordered by the administrator or incurred by him in the interest of the debtor and whose reimbursement was demanded from the debtor. The adoption of such a solution, however, is very strict from the perspective of a court-appointed administrator who would be liable with his or her own assets for business decisions made on behalf of the debtor. The intentions of the legislator are not known, as there is lack of justification to the act in this respect.

This text is an extract from a practical commentary prepared by the author for Wolters Kluwer publishing house. The full version of the commentary is available to LEX system users at: https://sip.lex.pl/#/publication/470173608.