Due to the verdict in 2014 concerning the trustee’s fee in Ejendomsselskabet Sandgården ApS in bankruptcy, the trusteeship was only assigned 30 million DKK despite their appealed claim for a fee of 35 million DKK. The result caught attention in the trustee circuit as well as the media, and the lack of competition, where in practice the trustee has always been an attorney, was considered the issue. Attorney and former chief of the legal counsel of Ejendomsselskabet Sandgården ApS welcomed the accountants’ initiative as trustees. Furthermore, the verdict in U.2014.90V demonstrated that a trustee does not have to be an attorney, considered a cand.jur. was chosen in this specific case. This Thesis aims to investigate the circumstances under which an accountant may act as a trustee, bearing in mind the accountant’s independence and qualifications as well as the possible implications involved. The Danish Bankruptcy Act for the nomination of a trustee, which must be conducted by the Bankruptcy Court, is examined. The Bankruptcy Court needs to follow the regulations, including the trustee’s independence and qualifications, but must generally nominate the trustee likely to be appointed by creditors. According to practice, The Bankruptcy Court appoints a permanent trustee as far as possible. Creditors though have the option to call a Bankruptcy Assembly for the appointment of a trustee. The accountant should therefore be expected to be appointed by either The Bankruptcy Court or the creditors, provided the accountant is both independent and eligible. The conditions in which the trustee must assess its independent, pursuant to The Danish Bankruptcy Act, which can be divided into two sections, general and special independence. General independence includes close relationships, substantial direct or indirect ownership of a company and beholden to the debtor. Special independence extends to cases where there are doubts about trustee’s independence in the matter, due to the trustee’s interest in the outcome or for other reasons. The accountant will, however, assume chosen as a trustee to be imposed on assurance reports which means that the accountant will need to assess his independence under The Danish Act on Registered and State Authorized Public Accountants. The accountant’s independence from The Danish Act on Registered and State Authorized Public Accountants compared with that of The Danish Bankruptcy Act. By reviewing the independence regulations laid down in The Danish Bankruptcy Act and The Danish Act on Registered and State Authorized Public Accountants, this Thesis shows that there are basically no circumstances that would not allow the accountants’ work as trustees, but that it may have consequences for the accountant, with respect to the usual accountant tasks for those involved. By looking into the Danish Bankruptcy Act regarding trustee assignments, insurance etc. the fact that the trustee must be qualified for the position is reviewed. This leads to a discussion on the definition of how low the trustee’s qualifications must be, as well as the fact that qualifications can be difficult to prove beyond education and experience, which are not contained by the law. Based on a statement in 2012 in which more than 80% of the bankruptcy cases were assigned to permanent trustees, it must be considered appropriate for an accountant to be assigned such, if possible. This is examined more in depth in this Thesis. However, The Association of Trustees is a private association and therefore not bound by The Danish Bankruptcy Act, which makes them capable of setting higher demands, making it more difficult for accountants to become permanent trustees. When appointing a permanent trustee, The Bankruptcy Court assesses among other things the person's education, giving rise to comparisons with insolvency education in The United Kingdom. This thesis shows that the size difference between Denmark and The United Kingdom, complicates the possibility for an equivalent education in Denmark. It is concluded that the accountant has the opportunity to act as trustee if he is independent to The Danish Bankruptcy Act or The Danish Act on Registered and State Authorized Public Accountants, which by example could be a customer of the accountant who is in bankruptcy. However, this would mean that the accountant afterwards would be dependent to the customer and therefore should refrain from other work with this specific customer containing assurance reports. The accountant also needs to be qualified for the position, which must depend on the individual accountant’s skills and the acquisition thereof. Since The Bankruptcy Court most likely will appoint a permanent trustee, it is deemed necessary that the accountant must convince creditors designating them as a trustee.
|Educations||MSc in Auditing, (Graduate Programme) Final Thesis|
|Number of pages||83|