Cancellation of a limited liability company despite participation in ongoing tax proceedings

Not every ongoing tax proceeding prevents the termination of the liquidation of a limited liability company ("GmbH"). This was recently decided by the Federal Court of Justice (Bundesgerichtshof, "BGH").

Facts

The decision of the BGH was based on a dispute regarding the cancellation of a liquidated GmbH from the commercial register.

The company had duly entered into liquidation, the blocking year had already expired and the company had been wound up. The liquidators therefore applied to the commercial register for termination of the liquidation proceedings and the associated deletion of the GmbH. However, the application was rejected by the registry court because the tax office refused to give its consent to the deletion. According to the tax office, the deletion of the GmbH would mean that decisions in a pending tax case could no longer be served.

The appeal against the decision of the registry court was rejected; the applicant then pursued its application for deletion before the BGH with an appeal on points of law.

The decision of the BGH of May 17, 2022 (Case No. II ZB 11 /21)

The appeal on points of law was successful. According to the BGH, in the tax proceedings addressed by the tax office, the GmbH was only subject to obligations to declare and provide information, which it had also already fulfilled. In the case of liquidation measures without reference to assets, the interests of third parties only preclude the deletion of a GmbH without assets if the interest is justified. This was not the case here: the passive receipt of notifications was not sufficient for this purpose. The interest in successful notification could also be satisfied by the GmbH authorizing a third party to receive decisions of the tax authorities prior to its deletion.

Practical advice

The orderly withdrawal of a GmbH from legal transactions generally takes place in a "formal three-step process". It is initiated by the dissolution of the company, for example by the expiration of time according to the articles of association, a shareholders' resolution, a judgement or the opening of insolvency proceedings. Except in cases where insolvency proceedings have been opened, this is followed by liquidation, i.e. the liquidation of the company in terms of assets. When no further liquidation measures are required, all the company's assets have been distributed and all its liabilities have been settled, the company can finally be deleted from the commercial register after the expiry of the so-called "blocking year". From this moment on, the company is completely terminated. However, if it turns out after deletion from the commercial register that the company still has assets after all, a so-called supplementary liquidation can be carried out upon application in order to liquidate the discovered assets.

In principle, the consent of the tax office must also be obtained before a company is deleted from the commercial register. This is because ongoing tax proceedings may have an impact on the corporate assets of a GmbH and may therefore prevent the deletion from the commercial register (e.g. in the case of ongoing refund proceedings). However, as the case of the BGH shows, not every ongoing tax proceeding (a fortiori not those which have no effect on the assets of the GmbH) prevents the liquidation from being completed.