1. Is bankruptcy mortgage superior to tax?
If the debtor is in the bankruptcy procedure, the creditor should declare the creditor's rights, and wait until the creditor's rights are confirmed and enter the stage of variable price distribution, and the collateral will be paid first.
If the court decides that the debtor is reorganized, the creditor will have to wait. If the reorganization is successful, the creditor's rights with mortgage shall be paid first; if the reorganization fails, it shall be transferred to bankruptcy liquidation, and the value of mortgage shall be paid first.
Usually, the mortgage takes precedence over the state tax right, and the state tax right only takes precedence over the unsecured creditor's rights. However, in the case that the mortgagor owes taxes, the priority of the state tax will be upgraded.
According to Article 46 of China's Law on Tax Collection and Administration, "If a taxpayer mortgages or pledges his property due to tax arrears, he shall explain the tax arrears to the mortgagee and pledgee. Mortgagees and pledgees may request the tax authorities to provide relevant tax arrears. " Paragraph 1 of Article 45 of this Law stipulates: "The tax authorities shall collect taxes, and the taxes shall take precedence over unsecured creditor's rights, unless otherwise provided by law; If the tax owed by the taxpayer occurs before the taxpayer mortgages or pledges his property or the taxpayer's property is retained, the tax shall be executed before the mortgage, pledge and lien. "
Second, the concept of mortgage
Mortgage is a kind of legal agreement, which can protect the lender when the borrower can't pay the money required by bonds or bills. Mortgage gives the lender the right to be repaid from the cash obtained from the sale of the borrower's assets as specified in the agreement. In the legal document called mortgage agreement, the borrower and the lender stipulate various mortgage terms.
Third, the priority of the mortgaged property
The priority of compensation for the sale price of mortgaged property refers to:
(1) For the creditor's rights secured by mortgage, the creditor can be paid off at the price of the mortgaged property prior to the ordinary creditors of the debtor;
(2) The priority right of compensation for the sale price of mortgaged property is also manifested between two real rights, that is, if more than two mortgages are set on the same collateral, the mortgagee in the first order has priority over the mortgagee in the second order and is paid off;
(3) The mortgagee enjoys the right of exclusion in the bankruptcy procedure of the debtor, that is, the mortgaged property should be removed from the bankruptcy property of the debtor, and the mortgagee has the priority to be compensated for the price of the mortgaged property that has been excluded.
If there are both unpaid taxes and debt mortgage after the debtor goes bankrupt, under normal circumstances, the mortgage will be paid off before the tax, but if the unpaid tax occurs before the mortgage, the tax will take precedence over the mortgage.