In its ruling of 24 September 2024, the Brandenburg Higher Regional Court clarified that a managing director is in breach of his duty if he withdraws assets from the company for his own benefit and to the detriment of the company. The withdrawal of company assets without compensation by the managing director, who was also a shareholder, also constituted an existence-threatening intervention and led to liability under Section 826 of the German Civil Code (BGB).
The Supreme Tax Court had asked the European Court of Justice for a preliminary ruling on the question of a direct refund claim in the case of incorrectly invoiced and paid German VAT in the event of the supplier's insolvency. In its judgment, the ECJ is of the opinion that the recipient of the service cannot claim a refund of the VAT paid to the supplier directly from the tax authorities of his Member State.
The profit pooling agreement under the concept of a tax consolidation group (Organschaft) must be concluded for at least five years and be followed throughout its entire term. According to the decision of the Supreme Tax Court recognition of the Organschaft is to be denied with retroactive effect if preliminary annual financial statements of the controlled company can no longer be adjusted due to insolvency and if a different result would have been reported in the final annual financial statements if the accounting principles under commercial law had been applied correctly.
If the shareholder's right of membership in a domestic stock corporation (AG) lapses because the AG is dissolved, wound up and deleted from the register as a result of insolvency, the shareholder incurs a taxable loss if he does not receive his contribution back in full or in part.
The finance ministry has ruled that the VAT on receivables from sales of goods or services is to be automatically cancelled on the opening of insolvency proceedings against the debtor. Payments made later by the trustee lead to re-adjustment of the VAT return.
