Bankruptcy (Scotland) Act 1985 (repealed)

52 Estate to be distributed in respect of accounting periods. S

F1 [(1) The F2 . . . trustee shall make up accounts of his intromissions with the debtor’s estate in respect of each accounting period.

(2) In this Act “accounting period” shall be construed as follows—

(a) [F3 subject to subsection (2ZA) below,] the first accounting period shall be the period of [F4 12] months [F5 or such shorter period as may be agreed or determined in accordance with subsection (2ZB), either period] beginning with the date [F6 on which sequestration is awarded]; and

(b) any subsequent accounting period shall be the period of [F4 12] months beginning with the end of the last accounting period; except that—

(i) in a case where the Accountant in Bankruptcy is not the F2 . . . trustee, the F2 . . . trustee and the commissioners or, if there are no commissioners, the Accountant in Bankruptcy agree; or

(ii) in a case where the Accountant in Bankruptcy is the F2 . . . trustee, he determines,

that the accounting period shall be such other period beginning with the end of the last accounting period as may be agreed or, as the case may be determined, it shall be that other period.

[F7 (2ZA) Where the trustee was appointed under section 2(5) of this Act as interim trustee in the sequestration, the first accounting period shall be the period beginning with the date of his appointment as interim trustee and ending on the date 12 months after the date on which sequestration is awarded [F8 or such shorter period as may be agreed or determined in accordance with subsection (2ZB)] .]

[F9 (2ZB) This subsection applies where the trustee considers that the funds of the debtor’s estate are sufficient to pay a dividend in accordance with subsection (3) in respect of—

(a) in the case where the trustee is the Accountant in Bankruptcy, a shorter period of not less than 6 months determined by the Accountant in Bankruptcy,

(b) in any other case, a shorter period of not less than 6 months agreed—

(i) between the trustee and the commissioners, or

(ii) if there are no commissioners, between the trustee and the Accountant in Bankruptcy.]

(2A) An agreement or determination under subsection (2)(b)(i) or (ii) above—

(a) may be made in respect of one or more than one accounting period;

(b) may be made before the beginning of the accounting period in relation to which it has effect and, in any event, shall not have effect unless made before the day on which such accounting period would, but for the agreement or determination, have ended;

(c) may provide for different accounting periods to be of different durations,

F10 ....]

(3) Subject to the following provisions of this section, the F2 . . . trustee shall, if the funds of the debtor’s estate are sufficient and after making allowance for future contingencies, pay under section 53(7) of this Act a dividend out of the estate to the creditors in respect of each accounting period.

(4) The F2 . . . trustee may pay—

(a) the debts mentioned in subsection (1)(a) to (d) of section 51 of this Act, other than his own remuneration, at any time;

(b) the preferred debts at any time but only with the consent of the commissioners or, if there are no commissioners, of the Accountant in Bankruptcy.

(5) If the F2 . . . trustee—

(a) is not ready to pay a dividend in respect of an accounting period; or

(b) considers it would be inappropriate to pay such a dividend because the expense of doing so would be disproportionate to the amount of the dividend,

he may, with the consent of the commissioners, or if there are no commissioners of the Accountant in Bankruptcy, postpone such payment to a date not later than the time for payment of a dividend in respect of the next accounting period.

F11 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) Where [F12 a review or appeal is made under section 49] of this Act against the acceptance or rejection of a creditor’s claim, the F2 . . . trustee shall, at the time of payment of dividends and until the [F13 review or appeal] is determined, set aside an amount which would be sufficient, if the determination in the [F13 review or appeal] were to provide for the claim being accepted in full, to pay a dividend in respect of that claim.

(8) Where a creditor—

(a) has failed to produce evidence in support of his claim earlier than 8 weeks before the end of an accounting period on being required by the F2 . . . trustee to do so under section 48(5) of this Act; and

(b) has given a reason for such failure which is acceptable to the F2 . . . trustee,

the F2 . . . trustee shall set aside, for such time as is reasonable to enable him to produce that evidence or any other evidence that will enable the F2 . . . trustee to be satisfied under the said section 48(5), an amount which would be sufficient, if the claim were accepted in full, to pay a dividend in respect of that claim.

(9) Where a creditor submits a claim to the F2 . . . trustee later than 8 weeks before the end of an accounting period but more than 8 weeks before the end of a subsequent accounting period in respect of which, after making allowance for contingencies, funds are available for the payment of a dividend, the F2 . . . trustee shall, if he accepts the claim in whole or in part, pay to the creditor—

(a) the same dividend or dividends as has or have already been paid to creditors of the same class in respect of any accounting period or periods; and

(b) whatever dividend may be payable to him in respect of the said subsequent accounting period:

Provided that paragraph (a) above shall be without prejudice to any dividend which has already been paid.

[F14 (10) In the declaration of and payment of a dividend, no payments shall be made more than once by virtue of the same debt.

(11) Any dividend paid in respect of a claim should be paid to the creditor.]

Textual Amendments

F1 S. 52(1)(2)(2A) substituted for s. 52(1)(2) (1.4.1993, subject to savings in arts. 4,5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para.21 (with s. 12(6)); S.I. 1993/438, art.3

F2 Words in s. 52 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F3 Words in s. 52(2)(a) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 44(2)(b)(i) (with s. 223); S.S.I. 2008/115, art. 3(1)(a)(i) (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)

F4 Words in s. 52(2) substituted (1.4.2008 for specified purposes, otherwise prosp.) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 44(2)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F5 Words in s. 52(2)(a) inserted (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), ss. 15(a), 57(2); S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F6 Words in s. 52(2)(a) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 44(2)(b)(ii) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F7 S. 52(2ZA) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 44(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F8 Words in s. 52(2ZA) inserted (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), ss. 15(b), 57(2); S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F9 S. 52(2ZB) inserted (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), ss. 15(c), 57(2); S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F10 Words in s. 52(2A) repealed (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), s. 57(2), sch. 4; S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F11 S. 52(6) repealed (1.4.1993, subject to savings in arts. 4,5 of S.I. 1993/438) by 1993 c. 6, s. 11(4), Sch.2 (with s. 12(6)); S.I. 1993/438, art.3

F12 Words in s. 52(7) substituted (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), s. 57(2), sch. 3 para. 26(a); S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F13 Words in s. 52(7) substituted (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), s. 57(2), sch. 3 para. 26(b); S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F14 S. 52(10)(11) inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 15

Modifications etc. (not altering text)

C1 S. 52 applied with modifications by S.I. 1986/1915, Rule 4.68 and by Rule 2.41(2) (as substituted (15.9.2003) by S.I. 2003/2111, rule 3, {Sch. 1Pt. 1})

C2 S. 52 applied (with modifications) (14.11.2011) by The Investment Bank Special Administration (Scotland) Rules 2011 (S. I. 2011/2262), rules 127(2), 132