Obligation to file for chapter reloaded: How firms guarantee they’re absolutely funded for twelve months – Verlag INDat

• The duty to file for chapter is in full impact once more – potential over-indebtedness is subsequently turning into essential for firms, particularly given the financial challenges.
• Keep away from legal delays in chapter and legal responsibility dangers – if firms usually are not absolutely funded for the subsequent twelve months, an software for chapter have to be filed
• Chapter can be an vital reason behind chapter – submitting for chapter – whether or not attributable to over-indebtedness or chapter – can signify a chance for a recent begin.

Area / Frankfurt. Because of the ongoing financial challenges, enterprise managers ought to often take into account the query of whether or not their firm is likely to be prepared for chapter – particularly to keep away from legal responsibility dangers. From 1 January 2024, the duty to file for chapter applies once more in full. This implies: An organization should now be capable to show that they are going to be absolutely funded for the subsequent twelve months in order that they don’t have to file for chapter attributable to extreme debt. Lawyer Alexander Eggen from Schultze & Braun explains what firms ought to consider when contemplating this requirement and the way they will keep away from legal responsibility dangers and legal penalties attributable to delays ( surprising) in chapter.

What does twelve months absolutely funded imply?

The requirement to be absolutely funded for twelve months applies to companies – reminiscent of GmbH, UG or AG – in addition to the explanation for chapter: extreme debt (not chapter). “An organization is over-indebted if its money owed are larger than its property – until it is rather doubtless that the corporate will proceed within the subsequent twelve months with the state of affairs,” defined Eggen, whose workplace Frankfurt on the nationwide legislation agency Schultze & Braun leads.

To find out extreme debt, property are often in comparison with liabilities. The overfunding for twelve months is recorded utilizing a so-called rolling forecast. The premise of the forecast is the triad of company idea, monetary plan and ongoing forecast:

• Bodily idea: The bodily idea ought to be significant and consultant of the goal course.
• Monetary plan: The monetary plan relies on the event goal and the continuing forecast.
• Rolling forecast: The rolling forecast comes from the monetary plan.

“If the financial fundamentals and buildings are secure, there isn’t a cause why the continuing forecast shouldn’t be based mostly on common values ​​from earlier years. Nevertheless, it can be crucial that enterprise managers often assessment the three factors that construct on one another – ie company idea, monetary plan and ongoing forecasting – and document these opinions,” says Eggen. .

Bodily: There’s a danger of (surprising) delay in chapter

However what if an entrepreneur or enterprise supervisor finds it tough to make continuity forecasts as a result of orders usually are not coming in as earlier than or solely in elements? “If any of the three factors within the enterprise idea, the monetary plan and the continuity forecast are lacking, entrepreneurs or enterprise managers ought to rapidly search skilled assist and, if essential , filed for chapter inside authorized deadlines attributable to extreme debt,” Eggen stated. In any other case, there could possibly be monetary legal responsibility and legal penalties for delaying chapter, particularly if the tax workplace or the medical insurance firm information for chapter in opposition to the corporate. .

“Merely put, delaying chapter implies that an organization’s supervisor has uncared for the duty to file for chapter,” says Eggen. The duty to file for chapter applies to an organization known as—to primary GmbH, UG or AG – if the corporate is now not capable of meet its fee obligations or has extreme money owed. “In such a case, the supervisor is obliged to file for chapter throughout the statutory deadline – three to 6 weeks, relying on the explanation for infringement,” defined the lawyer, who has already suggested a number of firms on this context. “If the supervisor doesn’t file for chapter or information it late, he’s delaying chapter. On this case, he’s accountable together with his non-public funds for quantities that got here out of the corporate after the corporate was bankrupt or in debt – for instance by funds to banks, service suppliers or suppliers.

Legal responsibility dangers additionally for sole proprietors and partnerships

Nevertheless, since numerous elements play a task within the reply to the query “Is my firm prepared for chapter?”, it typically occurs that enterprise managers inadvertently slip into procrastination on chapter – particularly when they’re attempting in each strategy to remedy the monetary issues. of their firm. “However that doesn’t defend in opposition to the monetary legal responsibility dangers of delaying chapter, which additionally results in public prosecutor investigations and doable legal penalties,” says the Eggen’s legislation. “To keep away from the dangers of legal responsibility and legal penalties, managers ought to often deal with the query of whether or not their firm could also be prepared for chapter – particularly with the continuing financial challenges and the duty to file for chapter, which has been in full drive since January 1, 2024.

Illiberal or not (but)?

In addition to over-indebtedness, chapter is the second vital cause for chapter. An bancrupt firm is bancrupt when it may now not pay its due obligations. The supervisor is then obliged to file for chapter throughout the statutory deadline. Based on the case legislation of the Federal Courtroom of Justice, chapter happens if the corporate is unable to pay ten p.c or extra of its eligible liabilities​​​​​​with the liquid property obtainable on a date particular and doesn’t fill this hole inside three weeks, inclusive. account for the liabilities to be paid on this interval extra liquid property that can be obtainable on this interval.

The prospect for a brand new begin

Whatever the firm’s authorized type, the next applies: an software for chapter – and it doesn’t matter whether or not it was filed for chapter or over-indebtedness – doesn’t mechanically imply shifting that the historical past of the corporate ends at this level. As a substitute, chapter can signify a chance for a recent begin. The sooner a chapter declare is ready, the larger the possibility of a recent begin. If countermeasures are began early, there’s a higher probability of a profitable and sustainable end result. In any case, the motto is: Don’t waste any time if there’s an emergency – particularly for the reason that obligation to file for chapter has been absolutely efficient once more since January 1, 2024.