is a process providing for the rescue and recovery of financially distressed companies in a manner that balances the rights and interest of all relevant stakeholders. SARS
has participated as a creditor in business rescue proceedings
and has exercised the rights afforded to it by the Companies Act
in respect of such proceedings.
But there could be an increase in liquidations
during the course of this year as SARS
becomes less inclined to vote for a business rescue plan
, Legalbrief reports.
Two benefits of the Companies Act's business rescue
When it comes to business rescue
and how it's implemented, the new Companies Act
The interests of the creditors must prevail over the interests of the company; and
The court application for a business rescue must also be delivered to all creditors, shareholders and employees of the distressed company, the Tax Bulletin states.
Obviously, many businesses in financial distress
also have tax liabilities
. So although SARS
isn't pleased with a recent court decision to treat them as ordinary creditors during business rescue, it's inconceivable that it won't participate as a creditor in the business rescue process
This would prevent the business rescue
of many financially distressed companies, resulting in their liquidation and rendering the business rescue process ineffectual.
There may be instances when SARS
would be justified in relying on the exception, such as tax
evasion cases where the taxpayer has deliberately concealed its true state of affairs or where there has been dishonest tax
But in most cases, where companies have accumulated tax
liabilities in the ordinary course of business, it won't be appropriate for SARS
to rely on the exception. In those cases, SARS
will have to be content with participating as an ordinary creditor in the business rescue process, adds Moneyweb Tax
If your business is financially distressed
, here are six steps you should follow to ensure business rescue
and avoid liquidation
, according to the Business Day's BDLive website
Six steps to follow if your business is financially distressed
Business rescue proceedings begin when the board passes a resolution that the company is voluntarily beginning business rescue proceedings.
Complete a one-page form called the Notice of Beginning of Business Rescue Proceedings and file it with the Companies and Intellectual Property Commission (CIPC). You'll have to attach a sworn statement of the relevant facts upon which the resolution was founded by a director representing the board and set out the reasonable prospects of being rescued.
Send a letter to the Business Rescue Department for advice on a recommended practitioner, who will be accredited and issued with an interim conditional licence.
Within five days of filing a business rescue resolution, your company must appoint a business rescue practitioner, conditionally licensed for the project.
You must file and publish the notice of appointment within two days of the appointment and inform all affected parties of the appointment.
No liquidation proceedings must have commenced against the company when a decision is taken.
Make sure you follow these steps so you have a chance of qualifying for business rescue instead of liquidation.
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