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By Cathryn Williams, Paul Muscutt and Beth Bradley of the London Crowell Restructuring Team.

The Insolvency Act 1986 (HMRC Debts: Priority on Insolvency) Regulations 2020 (SI 2929/983) (the Regulations) were made on 11 September 2020 and will come into force on 1 December 2020.

As a result of the changes brought about by the Regulations, when distributing the assets of a company that enters an insolvency process on or after 1 December 2020, HMRC’s claim for unpaid taxes collected by companies on behalf of HMRC, including:

  • PAYE Income Tax;
  • Construction Industry Scheme Deductions;
  • Employee National Insurance contributions;
  • student loan repayments; and
  • VAT,

will move up the hierarchy to rank ahead of floating charge holders in the payment waterfall. Note that the return of Crown Preference is not a return to pre-2002 when all tax debts enjoyed preferential status; taxes due by corporates themselves (including corporation tax and capital gains tax) will remain as ordinary unsecured debts and will, therefore, continue to rank behind the claims of floating charge holders.

As HMRC will be a secondary preferential creditor, in most cases it is likely there will be less realisations available in an administration or liquidation for distribution to floating charge holders. The change will also likely result in less realisations being available for distribution to unsecured creditors via the prescribed part.

The Regulations follow previous legislative changes that have already diminished the position of floating charge holders. In April 2020, realisations from floating charge assets available to a floating charge holder were reduced following the increase in the prescribed part from £600,000 to £800,000. Further, following the introduction of the Corporate Insolvency and Governance Act 2020 in June this year, floating charge holders are prevented from appointing an administrator and/or imposing restrictions on the disposal of floating charge assets whilst a company is in moratorium and there are further implications on floating charge realisations if insolvency proceedings start within 12 weeks of the end of the moratorium (for further information on the moratorium, see our previous post here

The Regulations add to the uncertainty of recovery faced by floating charge holders and unsecured creditors in insolvency situations. These changes may further impact upon the economy as a whole, if the appetite of lenders to make available facilities (particularly asset based lenders, where floating charge security forms an important part of their security package) is diminished as a result. The changes may well result in the reduction or withdrawal of funding. For more information on what lenders can do to protect their position in light of the changes see our client alert