Whether a claim for adjustment under the VAT Act should be approved as a preferantial claim in connection with bankruptcy.

Supreme Court order 28 May 2020, HR-2020-1129-A, (case no. 19-168837SIV-HRET), civil case, appeal against judgment. 

The bankruptcy estate of REC Wafer Norway AS (Counsel Andreas Stang Lund) v. The State represented by the Tax Office (The Office of the Attorney General represented by Arne Johan Dahl)

Justices: Øie, Falkanger, Bergsjø, Arntzen, Bergh

A company had invested considerable assets in a property to develop it into a production plant. After bankruptcy proceedings had been initiated in the company, the property was sold by the bankruptcy estate. The sale triggered an obligation to adjust input VAT by a large amount, see section 9-2 subsection 3 of the VAT Act. The Supreme Court heard the case sitting as a division. The majority of three justices found like the lower instances that the adjustment claim had to be approved as a preferential claim, see section 9-2 of the Creditors Security Act. It was assumed that the adjustment claim only arose in connection with the bankruptcy estate's sale of the property, and that the estate, not the debtor, was responsible for the VAT adjustment. Great emphasis was placed on the wording of the relevant provisions. The appeal against the Court of Appeal's order was dismissed. Two justices found that the Court of Appeal's order should be set aside, but with somewhat different reasons.

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