פרק (י-ם) 6333-11-18, עו"ד י. בר הלל, נאמן בהקפאת הליכים של דודי בראשי תשתיות בע"מ נ' בנק מרכנתיל דיסקונט בע"מ, בבית המשפט המחוזי בירושלים, 18.12.2018, כב' השופט אביגדור דורות
A company that engaged in infrastructure works entered into insolvency proceedings, and as a result a floating lien was formed in favor of the bank that extended credit to the company and its floating lien was applied to all of the company’s assets at the time. The bank claimed that the overpayment money (excise tax) on diesel fuel belonged to it because they were related to tax payments that stemmed before the insolvency and therefore the floating charge applies to them.
The Court held that the tax rebates are not subject to the floating lien because the right to them is created only upon submission of the refund request. Excise is a tax on fuel products, which in some cases its payer is entitled to receive a refund of the tax paid, for example when the fuel was used for production in an industrial plant; commercial vehicle, bus, agricultural tractor, agricultural machinery, and more. A condition for receipt of the assignment on the excise is the submission of an application with the required documents and the entitlement to receive the refund is created, just like any other tax refund, only upon submission of the request for the receipt. For this reason, the right was created only after the company became insolvent and the floating lien crystallized and therefore is not subject to a lien.