Bankruptcy of a GmbH
December 2, 2009 | 50,00 EUR | answered by Andreas Scholz
For about 10 years, we have been running a GmbH. About 4 years ago, I borrowed money from the company, which I have not yet repaid. Now the company is experiencing financial difficulties. In 2007, as the managing director, I paid approximately 25,000 euros from my personal funds for trade, wages, and corporate taxes. A similar amount is still due for 2008, but is no longer available. The company's assets include a 3.5 ton truck, some tools, and a PC. The company is in liquidation. Meanwhile, my wife has started a new company. We are using the truck, tools, and PC here. Now to the question: In the event of the GmbH's insolvency, can the truck, etc. be taken away from us even though it is essential for social security? What about the tax debts? Who pays the insolvency administrator? What should we do? Best regards, Marco Martens
Dear inquirer,
In your case, it concerns a regular insolvency procedure.
The costs of the administrator are expenses of the procedure and will be paid in advance from the insolvency estate.
The insolvency administrator will take possession of the truck and possibly dispose of it. A seizure protection under § 811 ZPO is unlikely to exist, as your wife is not a debtor and therefore does not belong to the protected group under § 811 ZPO. Furthermore, the truck is not used for the acquisition of the insolvent GmbH, but for another company, which also contradicts the seizure protection under § 811 ZPO. In order to prevent the truck from no longer being able to be disposed of due to an accident, he will have to prohibit its free use by another person.
Tax debts of the company are insolvency liabilities and will be settled according to quota, like other tax liabilities.
A short-term sale of the truck to your wife's company could potentially be contestable under insolvency law. If you decide to sell before the impending insolvency, it must be ensured that the sale is made at a reasonable price in order to avoid being exposed to contestation due to preferential treatment of creditors.
It might be worth considering to arrange for a paid use of the truck between the two companies, so that in case of possession by the administrator, he may be more inclined to refrain from depriving the truck of use by your wife's company, to which he is legally entitled.
I hope this information has been helpful. If you have any further questions, please feel free to ask.
Sincerely,
Andreas Scholz, Attorney
