Commercial enterprise in insolvency
July 22, 2009 | 30,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Hello,
can someone please answer the following questions for me:
I am currently in the probationary phase of my insolvency proceedings. I am employed full-time.
I used to have a bookkeeping office and some clients would like to continue being serviced by me. These are monthly recurring, consistent incomes. Adding the annual result to my earnings from employment would not exceed the garnishment limit. Can I apply to the court to have the money I earn not go through the insolvency administrator - i.e. be transferred to my account - if I apply for the small business regulation according to §19b UStG at the tax office and the administrator is not obligated to the tax office regarding the sales tax?
Another question concerns an existing tax debt with the tax office, which was also reported to the insolvency administrator by the tax office. I can expect yearly tax refunds, which will be offset by the tax office against the tax debt, but this would mean a benefit to the creditors according to the Insolvency Act. Can I force the tax office to pay me the money?
And the last question:
If there are fluctuating monthly results in the business due to one-time orders or purchases - i.e. loss one month, profit the next - how does this interact with the garnishment table? Will the annual profit be divided by twelve and then garnished, or is it based on the month?
Thank you in advance
Kind regards
Carsten
Dear inquirer,
Thank you for your inquiry!
I would like to address your questions as follows, taking into account your input and the description of the situation:
1.) Can I request in court that the funds I receive do not have to go through the insolvency administrator - i.e. be transferred to my account - if I apply for the small business regulation according to §19b UStG at the tax office and the administrator is not obliged to the tax office regarding the value-added tax?
No, unfortunately, this is not possible, as all income generally flows to the trustee (insolvency administrator) since it falls into the insolvency estate. The tax planning, especially the use of the small business regulation, does not have an influence on this, as it does not affect the quality of the incoming funds as income.
2.) Can I force the tax office to pay me the funds?
This is a very difficult and highly controversial question, which is answered differently in literature and has not been conclusively regulated by case law or the law (Insolvency Code).
The starting point is that income tax refunds usually result from the fact that the employer has paid a certain portion of the gross wage to the tax office as income tax based on table values, and the total amount of income tax paid exceeds the annual tax due, resulting in a refundable difference.
Therefore, the question arises whether the income tax refund is not part of the wage and thus must be paid to the insolvency administrator. This question is answered very differently, but the majority generally denies it:
According to the Frankfurt commentary on the Insolvency Code under § 287 para. 44, income and wage tax refunds do not constitute work income. However, there are opposing views as well.
Based on the prevailing opinion, the refund is not considered income and does not have to be paid to the trustee.
However, it must still be distinguished between cases where the tax office is involved as a creditor in insolvency and where it is not.
In conclusion, it is generally accepted that tax refunds do not have to be paid to the insolvency administrator, but this may vary depending on the circumstances, especially with regard to outstanding tax debts. Therefore, this cannot be definitively clarified in an initial consultation.
3.) If there are fluctuating monthly results in the business due to one-time orders or purchases - i.e. loss in one month and profit in another - how does this affect the wage garnishment table, is the annual profit divided by twelve and then seized, or does it depend on the month?
For self-employed individuals, the average annual amount is considered, while for employees, the monthly amount is taken into consideration.
I hope this provides you with a first legal orientation and wish you success and all the best!
I would like to point out the following in conclusion:
The legal advice I have provided is based solely on the information you have provided. My response is only an initial legal assessment of the situation and cannot replace a comprehensive assessment of the facts. Adding or omitting relevant information can lead to a completely different legal assessment.
I hope my explanations have been helpful to you. Please feel free to contact me through the follow-up option on this platform or via my email address.
I wish you a pleasant Wednesday afternoon!
Kind regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax: 0471/3088316
