A Tale of Two Crowns: COVID-19 and the Return of Crown Preference

Corporate Finance & Restructuring

December 1, 2020

A Tale of Two Crowns: COVID-19 and the Return of Crown Preference

Coronaviruses are named for the crown-like spikes on their surface. The combination of the “Two Crowns” - COVID-19 alongside the return of Crown Preference - will result in a significantly more material impact than was originally intended, given the COVID-19 VAT deferral scheme which has resulted in over £28bn of cumulative VAT deferrals.

In this briefing memo, Lisa Rickelton (Restructuring) and Alistair Winning (Tax) discuss the practical consequences of Crown Preference, alongside crown set-off rules in the context of insolvency, and provide worked examples, giving a deeper dive into the issues raised by VAT groups in which members have joint and several liability.

Summary of Provisions

The return of Crown Preference had been due to come into force on 6 April 2020; however, this was delayed to 1 December 2020 due to COVID-19.

HMRC will rank ahead of floating charge creditors and unsecured creditors in respect of certain taxes which are collected by a company on behalf of HMRC – primarily VAT, PAYE and employees’ National Insurance Contributions (“Priority Taxes”). Prior to 1 December 2020, these taxes rank as unsecured.

Key Points to Note:

  • The new waterfall applies to all insolvencies which commence from 1 December 2020 – the date of the creation of the floating charge is irrelevant, unlike the transitional provisions on the increase of the Prescribed Part cap to £800k.
  • The existing Schedule 6 preferential (generally employee) creditors will rank ahead of the new Priority Taxes which will have a secondary preferential claim.
  • There is no cap on HMRC’s secondary preferential claim for Priority Taxes – either by quantum or by time period.
  • HMRC will remain an unsecured creditor in respect of taxes that HMRC collects directly e.g. corporation tax, employers’ National Insurance.
  • These rules are in addition to the existing legal framework which allows HMRC to offset preadministration credits against pre-administration debts of HMRC or other government departments under Crown Set-off.

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