HD grants rescission – bankruptcy decision is annulled
HD grants rescission – bankruptcy decision is annulled
Following an application by the Tax Agency, the District Court declares a company bankrupt. The Court of Appeal rejects the company’s appeal and the Supreme Court (HD) does not grant leave to appeal. The company later applies for a refund from HD because the Tax Agency’s claim has been reduced as a result of cleared discretionary assessment. HD therefore assesses that relief should be granted, and since the investigation shows that the company is solvent, the bankruptcy decision is immediately revoked.
The Swedish Tax Agency’s bankruptcy application is approved
The Swedish Tax Agency has a claim regarding taxes and fees against a company. The agency assesses that the company will not be able to pay its debt and therefore makes an application to the District Court for the company to be declared bankrupt in accordance with the so-called insolvency presumption in ch. 2. Section 8 of the Bankruptcy Act. Bankruptcy hearings are held in the District Court and the company opposes the bankruptcy application as it is believed that the Tax Agency’s calculation of discretionary assessment is too high and that the tax debt is therefore incorrect. The company says it intends to submit income tax returns as evidence, which is why the District Court grants a 4-week adjournment, after which another hearing must be held. However, the company does not appear at the next bankruptcy hearing, after which the court decides on bankruptcy. The company appeals to the Court of Appeal, which rejects the appeal. The Court of Appeal’s rejection is then appealed to the High Court, which does not grant leave to appeal.
The travel case
The Tax Agency subsequently removes the discretionary assessment on which the calculation of the company’s debt is based. The company is therefore applying for a winding up in HD because the presumption of insolvency in the Bankruptcy Act is no longer fulfilled. Retrial means that a new trial is held in an issue that has already been decided by judgment.Furthermore, the company demands that the Swedish Tax Agency bear the legal costs in the appeal case. The Tax Agency does not object to the granting of a stay, but denies liability for the legal costs.
HD states that leave may be granted if a party invokes some circumstance or some evidence that was not presented before.In addition, it must be likely that the presentation of the circumstance or evidence in question would probably have led to a different outcome in the case. In conclusion, the party must also make it likely that he was unable to invoke the material that led to the application for rescission in the court that announced the judgment. The court finds that the conditions for erection are met and therefore grants the company’s application. Usually, approval of a motion means that the court that most recently ruled on a case, i.e. the Court of Appeal in this case, takes it up for a new examination. HD states, however, that if it is obvious what outcome a case should have, the court that grants a stay can also issue a judgment.
The court states that the investigation presented in the case shows that the company is solvent. They therefore see it as obvious that the bankruptcy decision should be annulled and decide the issue without referring the case back to the Court of Appeal. In conclusion, the Supreme Court sees no reason to deviate from the main rule regarding court costs; that is, they are paid by the party who loses the case.