The liability of members of the board of directors of capital companies (a limited liability company or limited liability company) for unpaid tax liabilities of that company is one from examples of responsibility for "non-debt debts". Speaking professionally, this is the responsibility for the tax liability of people third.
How can we defend ourselves against this surely unwanted commitment? The basic way seems to be to not file for bankruptcy without fault.
The NSA conviction deserves attention dated 16 December 2015 reference no. II FSK 2576/13. According to that judgment, ‘an objective measure of care that can be required from a party who takes good care of his interests shall be adopted when assessing the absence of guilt. Since the Complainant was a member of the Management Board of the Company, it was governed by the law – but also the obligation – to conduct the Company’s affairs.”
By Article 116. Tax Ordinance The tax arrears of the limited liability company, limited liability company in the organisation, joint stock company or joint stock company in the organisation shall be jointly and severally borne by the members of its board of directors if the execution of the company's assets has proved to be ineffective and the board member does not indicate the assets of the company from which the company's tax arrears can be met, or has not demonstrated that a bankruptcy application has been made in due time or has not shown that the restructuring procedure has been opened.
The content of that provision indicates that liability may be waived by indicating the assets of a company of adequate value or by submitting a bankruptcy application in due time. However, such a defense is in some cases impossible.
An interesting opportunity Article 116. section 1. point 1. point (b). According to this provision, the responsibility of a board member is excluded if he demonstrates that he has not filed for bankruptcy without his fault.
The NSA conviction deserves attention dated 16 December 2015 reference no. II FSK 2576/13. According to that judgment, ‘an objective measure of care that can be required from a party who takes good care of his interests shall be adopted when assessing the absence of guilt. Since the Complainant was a member of the Management Board of the Company, it was governed by the law – but also the obligation – to conduct the Company’s affairs.”
This passage shows that the key issue which may entitle the member of the board of directors to exclude responsibility for the company's tax obligations is that it is due diligence.
In other words, if someone did not know about the deteriorating financial condition of the company because of his own negligence, he could not rely on the lack of his own fault and consequently free himself from responsibility.
If, on the other hand, a member of the board demonstrates that he objectively did not have and could not have had an impact on the key circumstances resulting in the company's financial collapse, there is a chance of applying a specific privilege under Article 116. section 1. point 1. point (b)., i.e.
the exclusion of tax liability for the company's liabilities due to a lack of fault.
Author:
Expert Russell Bedford.