November 18, 2024
More stringent measures to combat abusive bankruptcies will come into force on January 1, 2025:
- Public law debts
From 1 January 2025, public law claims (e.g. taxes, VAT, fines, compulsory social insurance) will no longer be pursued by way of seizure, but by way of bankruptcy, when the person being pursued is entered in the Commercial Register (“CR”) within the meaning of article 39 of the Federal Act on Debt Enforcement and Bankruptcy (“DEBA”). The exceptions provided for in the Federal Debt Enforcement and Bankruptcy Act (art. 43 ch. 1 and 1bis DEBA) have been repealed, in order to combat the misuse of bankruptcy. Previously, this exception provided that the tax authorities, under art. 43 para. 1, and the Swiss Institute for Accident Insurance (Suva), under art. 43 para. 1bis DEBA, could not petition for bankruptcy.
The amendment affects the way in which public debt claims are processed throughout Switzerland, from VAT and fines to tax claims, social security contributions and compulsory insurance premiums.
The extension of the scope of bankruptcy does not affect entities that are not registered with the RC. Their situation remains unchanged, and they are still subject to seizure proceedings, regardless of the type of claim.
- Code of Obligations
The Code of obligations now stipulates that transfers of shares in over-indebted companies with no business activity or realizable assets are void (cf. art. 684a and 787a nCO). Retroactive opting out is also prohibited (cf. art. 727a, paras. 2 and 2bis, nCO).
In addition, the possibility of searching for persons in the commercial register has been introduced (cf. art. 928b nCO).
- Criminal code
As far as criminal law is concerned, prohibitions from carrying on business entered in the criminal record (e.g. for fraudulent bankruptcy or fraud) are now communicated to the federal authority responsible for overseeing the commercial register (i.e. the Federal Department of Justice and Police, or the Federal Office of the Commercial Register OFRC), which will examine whether the ban is incompatible with the entries in the commercial register, and measures may be taken, up to and including removal of the person concerned from the commercial register.
- Cantonal tax authorities
The cantonal tax authorities are now obliged to inform the commercial register offices if a company has failed to submit the annual accounts required by law (cf. art. 112, para. 4, nLIFD). This provision increases cooperation between the authorities and helps prevent companies from operating for long periods without keeping accounts, thereby acting prejudicially towards their creditors.
