CASE N.

º 1
THE STATE ON INSOLVENCY (I)

On May 1st, 2016, Mr. Antonio Alcocer comes into our office indicating that
the company he is the joint administrator along with D. Casimiro Casanueva,
CONSULTORIA, SL will be not able to fulfill the payments of the salaries of
his workers as well as other payments committed with the suppliers.
His main debt are the salaries of 22 workers to whom it must pay monthly
44,000 euros, but the company must face also the payment of an offices lease to
the company REAL STATE, S.L., for an amount of 4,000 euros per month and
that has already been unpaid since February, a lease of computers with the HP
company that has not been paid since March, and its amount is 1,050 euros per
month and the company has not made neither the quarterly payments in the
first quarter (that are paid on April 20th) concerning taxes to be declared to the
AEAT (VAT, withholdings taxes and fractionated payment of Company Tax)
and has not paid neither social security contributions since the month of March,
although it has submitted the TC1 and TC2 models.
All suppliers have been unpaid since April, from that moment on the incomes
coming from the consulting work performed have only been used to pay workers’
salaries and only partially.
The company has a loan granted by Banco Santander of 150,000 euros and
its main amount has to be repaid in July 2016 and has also failed to pay the
interest payments since April. This loan is guaranteed by the 22 employees of
the company and all of them also hold the status of partners of the company
in different minority percentages.
The other joint administrator, Mr. Casimiro Casanueva, has proposed to
summon a General Meeting of shareholders to submit to the decision of all the
shareholders if they decide to petition the declaration on insolvency.
The company is domiciled in Malaga, but it carries out its activity in Seville
and does not know which Commercial Court to go to in case of petition the
declaration of voluntary insolvency, although the creditor REAL STATE, S.L.
has indicated that they will request to the Commercial Court of Seville next week
for the declaration of necessary insolvency of CONSULTORIA, SL, providing
proof of the non-payment of the rent for three months.
Mr. Antonio Alcocer is very concerned that in 2014, the first year of com-
pany’s activity, they approved the annual accounts with negative equity capital,

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that is, with losses of 88,000 euros against a capital of 30,000 euros, but the
Mercantile Register accepted the deposit of the accounts without problems, and
the formulation of annual accounts for the year 2016 shows that its losses have
increased by almost 90,000 euros.

PROPOSED QUESTIONS TO SOLVE THE PRACTICAL CASE

1.º) Is CONSULTORÍA SL or is going to be in state on insolvency?

2.º) Which are the options the LC allows in this situation? Evaluate in
detail the pre-insolvency alternatives CONSULTORÍA, S.L. has.
3.º) Do we have to consider some period of special relevance for the peti-
tion of declaration on insolvency or for another pre-insolvency alternative?
4.º) Should we initiate the insolvency proceedings?
5.º) Can the creditor REAL STATE, S.L. initiate the insolvency procee-
dings? What consequences would it have for CONSULTORÍA, S.L. such request?
6.º) Which Court would have the competence on this insolvency procee-
dings?
7.º) Which are the documents the petitor, creditor or debtor, must present
to the court in the petition of insolvency?
8.º) Has any kind of effects the figures on the deposited annual accounts
for 2014?

For the resolution of the case consult, among others, arts. 1 to 24, 71 and 71
bis, 231 to 242 bis and the D.A. 4th LC.