Directive No. 19R

Reporting of Receipts Resulting from the Realization of Certain Assets in Summary Administrations

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Directive No. 19R

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Directive No. 19, Reporting of Receipts Resulting from the Realization of Certain Assets in Summary Administrations, has been revised to eliminate any confusion that may result from the wording of paragraph 6 of this Directive in light of subsection 128(1) of the Bankruptcy and Insolvency General Rules (the Rules).

According to subsection 128(1) of the Rules, the trustee's fees for services performed in a summary administration are calculated on the total receipts remaining after "deducting" necessary disbursements relating directly to the realization of the property of the bankrupt. The wording of paragraph 6 of the Directive indicates that the costs of disposition of these assets should be "absorbed" in the disbursement provision under the tariff. This wording has been revised to clarify that the costs of disposition of these assets are to be deducted from the gross proceeds from the sale of these assets.

Enquiries

If you require further information, please do not hesitate to contact the OSB office nearest you.

James Callon
Superintendent of Bankruptcy


Issued:

(Supersedes Directive No. 19 issued on , on the same topic)

Interpretation

  1. In this Directive,
    • "Act" means the Bankruptcy and Insolvency Act;
    • "OSB" means the Office of the Superintendent of Bankruptcy;
    • "Rules" means the Bankruptcy and Insolvency General Rules.

Authority and Purpose

  1. This Directive is issued pursuant to the authority of paragraphs 5(4)(b) and (c) of the Act.
  2. The purpose of this Directive is to clarify the method by which receipts are to be reported in the realization of certain assets in summary administration bankruptcies.
  3. The specific assets that require clarification are the following:
    • (a) vehicles and other personal property and movables;
    • (b) Registered Retirement Savings Plans (RRSPs);
    • (c) other trust claims; and
    • (d) real property or immovables.

Vehicles and Other Personal Property and Movables

  1. The gross proceeds from the sale of these assets, whether by auction or private sale, are to be included as total receipts as itemized under the tariff.
  2. It is recognized that there will be costs associated with the disposition of vehicles and other personal property and movables. The costs of disposition of these assets are to be deducted from the gross proceeds from the sale of these assets in accordance with Rule 128(1).

Registered Retirement Savings Plans

  1. (1) Under section 67 of the Act, amounts held in RRSPs are exempt from seizure in bankruptcy, subject to a possible clawback for contributions made in the 12 months preceding bankruptcy that will comprise property of the bankrupt's estate. Where provincial legislation exempts RRSPs from execution, the provincial legislation will apply. Where provincial legislation is silent regarding the treatment of RRSPs, they will be exempt subject to the clawback referred to above.

    (2) For those amounts that are not exempt, the plan issuer (trust company, chartered bank, etc.) would, upon termination, hold the moneys in trust for the bankrupt and the Canada Revenue Agency with respect to withholding tax.

  2. The trustee may realize only the residual trust funds received from the plan issuer in respect of the deregistration of an RRSP after income tax considerations. Therefore, only the amount received by the estate, net of tax liability, should be recorded in the Statement of Receipts and Disbursements for tariff purposes.

Other Trust Claims

  1. With respect to trust claims of the Crown or others, when the trustee receives funds from the sale of assets that are subsequently determined to be trust moneys, these proceeds do not represent receipts in the estate. The trustee would hold these funds in trust for the eventual trust beneficiary subject to the Directive concerning administrative agreements with trustees and receivers.
  2. The receipts and disbursements relating to a trust claim should be disclosed by way of a footnote or otherwise on the Statement of Receipts and Disbursements.

Real Property or Immovables

  1. In the case of real property or immovables, if there is expected material equity for the estate, the associated legal problems on the disposition of real property or immovables may warrant that any summary administration estate containing equity in real property or immovables should be converted to an ordinary administration.
  2. With respect to situations where it is apparent that the estate has no or minimal equity in the real property or immovables of the bankrupt, all legal costs with respect to the preparation of the quit claim documentation should be borne by the purchaser, who is the eventual beneficiary of the real estate.

Reimbursement of Costs by a Secured Creditor

  1. If the trustee is reimbursed by a secured creditor for costs incurred for the safekeeping of encumbered assets for which the estate has no interest, these receipts can be offset against the actual costs involved.

Coming into Force

  1. This Directive comes into force on .

Enquiries

  1. For any questions pertaining to this Directive, please contact your local OSB office.

James Callon
Superintendent of Bankruptcy

Important notice:

The HTML version of this Directive is not the official version. In the event of an inconsistency between the HTML and PDF versions of this Directive, the PDF version prevails. Users are required to exercise due diligence with respect to the HTML version.

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