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Notes for Guidance - Protected Trust Deeds Bankruptcy (Scotland) Act 2016

This guidance describes the general functions of Accountant in Bankruptcy and trustees in relation to their responsibilities regarding protected trust deeds (PTDs) which were granted on or after 30 November 2016


6.1 Liability for audit

A trustee in a PTD has the right to request that his fees are determined by the Accountant before creditors are circularised. However, as the trustee may only take a fixed fee for the administration of a PTD, and an additional fee, if so approved by creditors or the Accountant (section 5.8), there is no expectation for trustees to request that their fees are determined by the Accountant. Such action will only add unnecessary cost to the PTD.

AiB may audit a trustee’s accounts and fix his outlays at any time. Section 183 of the Act refers.

A creditor, the debtor, or trustee can at any time request that AiB audit the accounts and determine the trustee’s remuneration.

Schedule 4 of the 2016 Act as amended, states:

1. Whether or not provision is made in the trust deed for auditing the trustee’s accounts and for determining the method of fixing the trustee’s remuneration or whether or not the trustee and the creditors have agreed on such auditing and the method of fixing the remuneration, the debtor, the trustee or any creditor may, at any time before the final distribution of the debtor’s estate among the creditors, have the trustee’s accounts audited by and his remuneration fixed by the Accountant in Bankruptcy.

1A. The Accountant in Bankruptcy may, at any time, audit the trustee’s accounts and fix his remuneration.

 

The Accountant may instruct the trustee to prepare accounts before the end of the usual accounting period, in order to carry out an audit.

In order for the Accountant to complete their statutory duty to audit PTD accounts and fix the trustee’s fees and outlays, the trustee must be able to provide information to The Accountant to enable him to understand whether the fixed fee is reasonable in the circumstances of the case.

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