Proceeds of Crime Act 2002

Prospective

Winding up in England and Wales and Scotland E+W+S+N.I.

426 Winding up under the 1986 Act E+W+S+N.I.

(1) In this section “company” means any company which may be wound up under the 1986 Act.

(2) If an order for the winding up of a company is made or it passes a resolution for its voluntary winding up, the functions of the liquidator (or any provisional liquidator) are not exercisable in relation to the following property—

(a) property for the time being subject to a restraint order which was made under section 41, 120 or 190 before the relevant time;

(b) any property in respect of which an order under section 50 or 52 is in force;

(c) any property in respect of which an order under section 128(3) is in force;

(d) any property in respect of which an order under section 198 or 200 is in force.

(3) Subsection (2)(a) applies to heritable property in Scotland only if the restraint order is recorded in the General Register of Sasines or registered in the Land Register of Scotland before the relevant time.

(4) If an order for the winding up of a company is made or it passes a resolution for its voluntary winding up the powers referred to in subsection (5) must not be exercised in the way mentioned in subsection (6) in relation to any property—

(a) which is held by the company, and

(b) in relation to which the functions of the liquidator are exercisable.

(5) These are the powers—

(a) the powers conferred on a court by sections 41 to 67 and the powers of a receiver appointed under section 48, 50 or 52;

(b) the powers conferred on a court by sections 120 to 136 and Schedule 3 and the powers of an administrator appointed under section 125 or 128(3);

(c) the powers conferred on a court by sections 190 to 215 and the powers of a receiver appointed under section 196, 198 or 200.

(6) The powers must not be exercised—

(a) so as to inhibit the liquidator from exercising his functions for the purpose of distributing property to the company’s creditors;

(b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.

(7) But nothing in the 1986 Act must be taken to restrict (or enable the restriction of) the exercise of the powers referred to in subsection (5).

(8) For the purposes of the application of Parts 4 and 5 of the 1986 Act (winding up) to a company which the Court of Session has jurisdiction to wind up, a person is not a creditor in so far as any sum due to him by the company is due in respect of a confiscation order made under section 6, 92 or 156.

(9) The relevant time is—

(a) if no order for the winding up of the company has been made, the time of the passing of the resolution for voluntary winding up;

(b) if such an order has been made, but before the presentation of the petition for the winding up of the company by the court such a resolution has been passed by the company, the time of the passing of the resolution;

(c) if such an order has been made, but paragraph (b) does not apply, the time of the making of the order.

(10) In a case where a winding up of a company commenced or is treated as having commenced before 29 December 1986, this section has effect with the following modifications—

(a) in subsections (1) and (7) for “the 1986 Act” substitute “ the Companies Act 1985 ”;

(b) in subsection (8) for “Parts 4 and 5 of the 1986 Act” substitute “ Parts 20 and 21 of the Companies Act 1985 ”.

427 Tainted gifts E+W+S+N.I.

(1) In this section “company” means any company which may be wound up under the 1986 Act.

(2) This section applies if—

(a) an order for the winding up of a company is made or it passes a resolution for its voluntary winding up, and

(b) it has made a tainted gift (whether directly or indirectly).

(3) No order may be made under section 238, 239 or 423 of the 1986 Act (avoidance of certain transactions) and no decree may be granted under section 242 or 243 of that Act (gratuitous alienations and unfair preferences), or otherwise, in respect of the making of the gift at any time when—

(a) any property of the recipient of the tainted gift is subject to a restraint order under section 41, 120 or 190, or

(b) there is in force in respect of such property an order under section 50, 52, 128(3), 198 or 200.

(4) Any order made under section 238, 239 or 423 of the 1986 Act or decree granted under section 242 or 243 of that Act, or otherwise, after an order mentioned in subsection (3)(a) or (b) is discharged must take into account any realisation under Part 2, 3 or 4 of this Act of property held by the recipient of the tainted gift.

(5) A person makes a tainted gift for the purposes of this section if he makes a tainted gift within the meaning of Part 2, 3 or 4.

(6) In a case where the winding up of a company commenced or is treated as having commenced before 29 December 1986 this section has effect with the substitution—

(a) for references to section 239 of the 1986 Act of references to section 615 of the Companies Act 1985 (c. 6);

(b) for references to section 242 of the 1986 Act of references to section 615A of the Companies Act 1985;

(c) for references to section 243 of the 1986 Act of references to section 615B of the Companies Act 1985.