Liquidating in Spite of Tax Office’s Tardiness

When a company is to be wound up, the tax office must be given notice. The question in this case was how long the tax office could block the company in liquidation from being struck from the registry. OLG Düsseldorf instructed the tax office with its verdict of August 25, 2020 (re I-3 Wx 117/20).

Waiting for tax office no reason to delay liquidation

Tax Office is Irresolute

The company concerned was dissolved in 2018. After the expiration of the so-called “blocking year”, the liquidator notified the tax office of the end of liquidation process and the winding up of the company to the commercial registry on August 22, 2019.

As part of the registration procedure, the registration court asked the competent tax office whether tax or other property law issues still had to be settled with regard to the company and how long this was expected to take. The tax office informed the court that the GmbH could not be terminated until December 31, 2022 (sic!) because distributable assets might be remaining which needed to be distributed and taxed. In addition, tax assessment work still had to be carried out. The liquidator submitted a confirmation from an auditing company according to which the closing balance sheet of the GmbH showed equity of zero euros. The GmbH's liquid funds as of the closing date were only sufficient to immediately settle existing liabilities.

The registry court rejected the application for registration and referred to the assessment work still to be carried out by the tax office.

Tax Office is Unresponsive

The GmbH has filed an appeal against this decision. In the course of the appeal proceedings, the OLG Düsseldorf requested that the tax office specify in more detail the assessment work still to be carried out. When the tax office failed to respond to this request, the OLG Düsseldorf upheld the GmbH's appeal.

It is true that, in principle, a liquidation has not ended if taxation proceedings have not yet been concluded. However, according to the case law of the Higher Regional Court Düsseldorf, this does not apply if the company has definitively discontinued its business operations, no longer has any assets at its disposal and, at most, there are outstanding tax claims at issue.

Even any outstanding assessment work by the tax authorities and service requirements cannot prevent the winding up of the GmbH in this case. This is because the tax authority was not involved as a creditor in the register-law proceedings but was merely heard in order to avoid an incorrect entry in the registry. An opinion of the tax office within the scope of this hearing only prevents the deletion of the GmbH from the registry if it appears to the court to be a viable business. This was not the case in the dispute.

The tax authorities had granted themselves more than three years for the assessment work, although the tax assessment notice was expected around spring 2020. Also, there were actually no more distributable assets. The reference to assessment work was too sweeping and was not further substantiated by the tax administration despite explicit inquiry by the court. Finally, the reference by the tax authorities to existing tax deposit accounts was already beside the point in terms of content, since such "accounts" are purely calculation parameters and had no significance for answering the question as to whether there are still distributable assets.

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