Liability of all managing directors of German GmbHs (CEO, COO, CFO, CTO, CREATIVE, HR) in cases of over-indebtedness and insolvency
When an entrepreneurial company (UG) has built sufficient legal reserves - art. 5a sec. 3 GmbHG (German Companies Act) - in order to be able to establish the minimum share capital of a German GmbH, it may issue a shareholder resolution - art. 57c GmbHG - for the legal reserve to be converted into share capital.
However, a mandatory requirement for the conversion is the examination of the last year-end report of the UG - art. 57e GmbHG - by a certified auditor or a sworn accountant.
Postponement of priority declaration and ban on recognising provisions for anticipated losses for German corporations
The financial debt overload of a corporation can constitute a reason for filing a bankruptcy petition (art. 19 Insolvency Act). There is a financial debt overload when the liabilities exceed the assets, as for example in the case of a loss not covered by equity. In order to avoid having to file for bankruptcy, the shareholders often issue a postponement of priority declaration for their own claims against the company.
Emergency management is set up when
a) no other manager exists AND
b) the managing director can not assume the management (e.g. by death or serious illness, coma).
In such a case, the shareholders as well as the creditors can submit an application for the appointment of an emergency manager to the local district court and propose a person. It is recommended that a clear regulation for such an emergency be included in the statutes / articles of incorporation at the time of incorporation and that any existing statutes and articles of incorporation be amended as appropriate.
On the 1. January 2019, a new obligation for all German employers emerges:
They must ensure that their employees carry a valid A1 employer's certificate on all business trips to other EU countries or Iceland, Norway, Lichtenstein, Switzerland. The employer receives this certificate online from the responsible social insurance institution (health insurance, German pension insurance, etc.). This legal regulation also applies to very short stays of the employees in one of the above-mentioned countries, for example, when they drive across the border to refuel their vehicle. Customs officials of the countries concerned are authorized to stop passengers at any time and to request the presentation of the A1 employer's certificate.
If you marry in a civil registry office in Germany, after the marriage the registry office will send the details of the marriage to the relevant residents' registration office. The registration office, in turn, transmits this data to the tax authorities. According to the law, the tax authority first assigns to both spouses the tax class IV. These information details are then stored in the ELSTAM database, from which the employers obtain the data for the correct payroll tax calculation.
If you marry abroad, you have to inform the registration office and the tax office after the marriage by yourself.
However, if the tax class IV is not the best option for both spouses, then you must use a form to apply to the tax office to change the tax class to tax classes III and V OR to use the work-factor method.
Extra sustenance costs are tax-deductible costs incurred on a business trip for eating and drinking of the business traveler. Tax deductible are not the actual expenditures, but only the legally fixed allowances for additional meals.
For the travel expense reporting, a travel expenses statement is required which includes travel times and travel locations next to the travel receipts, not just individual records and documents. The level of the legal allowances depends on country and city. These allowances are regularly adjusted by the German Federal Ministry of Finance to reflect the cost of living of the individual countries.
Consequences of non-compliance with the legal limits:
If the employer pays his employees more than the statutory allowances, then the excess amount is converted into wages subject to tax and social security contributions.
With the Annual Tax Act 2018, the German Federal Ministry of Finance has rewritten Art. 8c (1) sentence 1 KStG (German Corporation Tax Act) after the decision of the Federal Constitutional Court. It is now stipulated by law that in cases of share transfers of German corporations between 25% and 50% existing loss carryforwards will not be proportionally shortened if the shares were transferred in the period from 1 January 2008 to 31 December 2015. For transfers of shares after 31 December 2015, however, the loss deduction limit shall apply again. The latter has nevertheless to be checked for constitutionality.
Since November 1, 2008, according to Art. 16 of the German Private Limited Companies Act (GmbHG), the list of shareholders in the Trade Register has been upvalued. Since then, it has been regarded as the basis of legitimacy for the exercise of shareholder rights and as a starting point for the good faith acquisition of shares.
However, incorrect or old shareholders lists are still to be found in the Trade Register. As a result, shareholders' resolutions may become void, profit-sharing rights may be disputed, or even share transfers may be declared invalid. These inaccurate lists, therefore, represent a considerable potential for liability risks for the company, the shareholders, and the managing director(s).
NEW: the duty to report foreign investments is extended to naming the commercial activity of the investee.
Until recently, according to Art. 138 of the German Fiscal Code the taxpayer had to report investments in non-German corporations or private companies to the tax office only if the investment – a direct or an indirect one –
a) reaches 10% or more AND
b) amounts to at least 150.000 EUR.
Now, the COMMERCIAL ACTIVITY OF THE INVESTEE must ALSO be reported to the tax office, that is – it has to be included in the tax declarations (income tax and corporation tax). This must be disclosed to the tax office within 14 months after the investment had been realised or after the participation limit had been reached. This deadline is not prolongable. A failure to comply with this reporting regulation constitutes an administrative offence, which can be fined up to 25.000 EUR.
Change of mind: the German Federal Fiscal Court doubts correctness of debit taxation, VAT, Sollbesteuerung
In the case of debit taxation, the entrepreneurs in Germany have to pay VAT to the tax office as soon as they have written the invoice – even if the customer pays later – what is, until now, an unconditional obligation for the entrepreneurs to pre–finance the VAT.
The German Federal Fiscal Court has now expressed doubts about the continuation of the existence of this obligation without any restriction, since it might be contrary to binding requirements of the law of the European Union. For topical reasons, the German Federal Fiscal Court has sent a preliminary ruling request to the European Court of Justice (Bundesfinanzhof, ruling of 21.06.2017 – V R 51/16, published on 20.09.2017).
Launched: the automatic exchange of financial account information between Germany and 49 other countries (CRS, Common Reporting Standard)
In September 2017, for the first time, Germany carried out the automatic exchange of financial account information with 49 other countries from all over the world. In the fight against cross-border tax fraud and tax evasion, closer cooperation between the national tax authorities is indeed essential. More than 100 countries and territories have currently registered for the automatic exchange of financial account information. The next data exchange, which is expected to involve additional countries and territories, is scheduled for September 2018.
The automatic exchange of financial account information is the systematic and regular transfer of strictly defined tax information – Common Reporting Standard – on certain types of income at a fixed time between states and territories.
As a result, the German tax authorities are now most extensively informed about foreign income generated by most taxpayers.
New and extremely important for corporations:
the current limitation of the loss deduction after a change of a shareholder – of more than 50% of the company shares – is now as well subject to review on grounds of possible unconstitutionality.
At the end of March this year, the German Federal Constitutional Court already ruled (step 1) that the regulation of the loss deduction after a change of shareholder(s)(1) - of more than 25% and up to 50% of the company shares - violates the Constitution.(2) Under the old regulation, the loss carryforward of a corporation ceased partially to apply if within 5 years there had been a transfer of 25% to 50% of company shares (harmful acquisition of shares). At the same time, the German Federal Constitutional Court ruled that the correction of this regulation should come into effect by the end of 2018. Simply put this means that shortened loss carryforwards made since January 2008 are now being reviewed by the tax office and will possibly be changed.
MBA for Finance and Financial Services (UK), Steuerfachwirt (GER)