Payment of Social Security Contributions during the Moratorium as Bankruptcy Estate Liabilities

Facts

Novima AG, which is seeking a composition agreement with assignment of assets, was granted a 4-month moratorium on September 18, 1973. The administrator demanded that Novima AG pay the contributions owed to the Old Age and Survivors' Insurance/Disability Insurance/Loss of Earnings Compensation (AHV/IV/EO) and the Family Allowances Compensation Fund (FAK) from the start of the moratorium until the end of 1973, as well as a prepaid premium for 2014 to the Swiss Accident Insurance Fund (SUVA). Novima AG filed a complaint against these decisions of the administrator with the supervisory authority for debt enforcement and bankruptcy of the Canton of St. Gallen, which however dismissed the complaint. Thereupon, Novima AG appealed the decision to the Debt Enforcement and Bankruptcy Chamber of the Federal Supreme Court.

Considerations

The Federal Supreme Court decided that the contributions owed to social security institutions from the start of the moratorium are to be considered as bankruptcy estate liabilities. Even though these public law obligations are not based on a contract that the administrator would have had to consent to, they can nevertheless have the character of bankruptcy estate liabilities, especially if they are directly linked to a bankruptcy estate liability, such as wage debts here.

Since bankruptcy estate liabilities are not covered by the composition agreement, they may be paid immediately. This is also important so that the continuation of the…