mlm Accomplish Agenda

Transcription

1 mlm Accomplish Knowledge initiative from mlm Solutions Developed for accountants and solicitors Free CPD seminar programme Access to our dedicated microsite containing articles, blogs and online CPD modules Free access to a restructuring professional to discuss, in confidence, any current issue or case you are concerned about Free, no obligation, case and options review with you and your client Agenda Background (Scottish Insolvency and SMEs) Challenges for SMEs Bankruptcy and Debt Advice (Scotland) Act 2014 Sequestration Trust Deeds Business Debt Arrangement Scheme Case Studies Lessons Learned Conclusions

2 Background - Scottish Insolvency Market Government recently released the UK insolvency stats for 2014 In Scotland latest figures, compared to 2013, show that: Company insolvencies are up 19.4% Compulsory liquidations are up 44.2% CVLs are down 20.2% Personal insolvencies are at an 11 year low Upward trend in the number of people entering the Debt Arrangement Scheme Background - Scottish SME Market As at March 2014, there were 330,000+ SMEs which accounted for: 1.1 million employees 99.3% of all private sector enterprises 54.8% of private sector employment 37.9% of private sector turnover SMEs play a pivotal role in our economy and communities Background - Scottish SME Market Sole Proprietors / Partnerships (including unregistered enterprises) equate to: 69.1% of all enterprises and 21.5% of the total number of people employed Number of sole practitioners / partnerships decreased by 6.2% since 2013 Employment decreased by 4.6%

3 Challenges for SMEs Cash flow represents one of the biggest challenges Once creditors are chasing for payment small business owner has two options try to save the business while attempting to settle outstanding accounts allow the business to fail by implementing an exit strategy that minimises the financial consequences Bankruptcy and Debt Advice (Scotland) Act 2014 BADA(S) aims to: ensure debtors have access to a fair and just process of debt management that those who can pay their debts do so; and that the best possible return are secured for creditors General BADA(S) Changes Discharge Process Mandatory Money Advice Common Financial Tool Debtor Contribution Order Contingency Allowance BRO Changes BADA(S) Financial Education Transfer of Court Functions Scotland s Financial Health Service Source: Accountant in Bankruptcy Decision Minimal Asset Process

4 Overview of Sequestration Must be insolvent Must be habitually resident or have an established place of business in Scotland Minimum debt level dependent on route in to bankruptcy Must have apparent insolvency Assets included Overview of Sequestration Application requires declaration from approved money adviser that money advice has been provided No minimum level for debtor contribution order (DCO) Standard period of DCO is 48 months New payment break of up to 6 months Discharge - trustee must automatically report to AiB at 10 month point Acquirenda now 4 years Claims must be submitted to trustee no later than 120 days after the notice is given Overview of Trust Deeds 1 or more creditors Must be able to meet dividend of 10p in the Minimum debts of 5,000 Must be in employment or receipt of private pension Will not work on benefits only Assets included, but trustee only has an interest in a car valued at over week voting period for creditors Creditors can object to trust deed gaining protection 48 month payment term

5 Introduction to Debt Arrangement Scheme Solution to address increase in consumer debt DAS formally introduced in 2004 Debt Payment Programme Allows individuals to repay debt Removes the threat of court action from creditors Number of further amendments What is the Business Debt Arrangement Scheme? The innovative application, by some advisors, of the DAS for sole traders and partnerships inspired the Government to develop and launch the Business DAS Our Credentials Adapted the DAS to help small businesses, experiencing financial difficulty, to manage their debt and survive Currently manager over 270 cases a third of relate to small businesses preserved around 450 jobs Invited to represent the Insolvency Practitioners Association in the Scottish Government s BDAS working group Helped contribute to BDAS legislation

6 Business DAS Key Facts Qualifying businesses must be in Scotland or have been formed under Scots Law: Partnerships Limited partnerships Corporate bodies Trusts Unincorporated body of persons Business DAS Key Facts Business DAS Money Advisers must be qualified Insolvency Practitioners Proposals must receive relevant consents from interested persons All qualifying debts must be included at the time of application A declaration of viability must be submitted with a Business DAS application Case can be referred to AiB if creditors do not accept the proposal Business DAS Key Facts Insolvency Practitioners must review the viability of the business every 12 months and must apply for revocation where no longer viable All cases must be completed within 5 years and no payment breaks are allowed No offer of composition may be made The DAS register has been updated to allow for searches for Business DAS cases

7 Business DAS Timeline INITIAL INTERVIEW APPOINTMENT DASH APPLICATION SUBMIT APPLICATION APPROVAL ANNUAL REVIEW Determine Review options Completed by Consent (major) Consent eligibility Agree plan MA Debt Written (minor) received confirmation from creditors (14 days) Creditors have 21 days to reply Payment distributor allocated Business DAS Stakeholders CREDITOR PAYMENTS DISTRIBUTOR DEBTOR DAS APPROVED MONEY ADVISOR DAS ADMINISTRATOR Case Study 1 Background Sole Trader Bus Company 25 employees Debt 100k owed to HMRC 50k owed to Credit Card and other debts Assets Owns property equity of 100k Other assets in Buses (but mostly leased)

8 Case Study 1 - Result Plan approved 1.7k monthly contributions for 7 years 25 jobs save Debt to HMRC, lenders and other debts to be cleared in full No impact on property equity Case Study 2 - Background Family business Operated under the Partnership (husband and wife) Total debts of around 180k owed to HMRC No equity Operated as a sole trader under wife s name only Total debts of around 34k owed to HMRC and credit card lenders Equity of around 400k Two previous failed DAS cases including one for non payment of an HMRC ongoing liability Case Study 2 - Process Met with clients to discuss Business DAS Assist preparation of detailed 12 month financial projection Includes monthly payment available to BDAS and to personal DAS as well as all fees BDAS proposal signed off by Licenced Insolvency practitioner to confirm viability for the next 12 months and submitted to creditor Personal DAS proposal submitted to creditors by Continuing Money Adviser as normal

9 Case Study 2 - Process HMRC rejected both DAS applications Both cases were submitted to the Fair and reasonable test AiB overturned HMRC s objections and approved both Business and personal DAS cases HMRC then appealed BDAS decision under the new review process AiB dismissed review and upheld DAS approval Both applications include a discretionary condition to pay DAS in full on sale of properties Case Study 2 - Result BDAS 4.5k monthly contributions for 40 months DAS 600 monthly contributions for 57 months 13 jobs saved in the Hotel and 2 jobs saved in the Guest House Debt to HMRC, lenders and other debts to be cleared in full No impact on property equity Lessons Learned Some creditors are less prepared to accept the scheme than others Some say they never receive the paperwork even though it is sent recorded delivery Some are unfamiliar with the scheme because it is under Scottish Law only HMRC tend to reject all applications and allow the case to go to the Fair and Reasonable test

10 Conclusion Introduction of BDAS a positive development DAS will continue to be a viable solution for individuals and sole traders BDAS not taken off as yet for partnerships BDAS is likely to extended from the current 5 year maximum term Financial Inclusion Commission recommendation to "adapt Scotland s Debt Arrangement Scheme (DAS) for the whole United Kingdom" SO Business DAS: A lifeline for Sole Traders and Partnerships? Questions? Maureen Leslie Director mleslie@mlmsolutions.co.uk Nikki Williams Director nwilliams@mlmsolutions.co.uk Ian Brown Senior Manager ibrown@mlmsolutions.co.uk