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In order to come to a decision as to which measures are necessary to close down a company, one first has to determine how the company should be closed down: whether it will be by insolvency or liquidation. One has to consider the required conditions for insolvency whereby the managing director has to petition for insolvency according to § 64 I GmbH-Gesetz (GmbHG). Should this duty be disregarded, civil and criminal legal proceedings could follow. Accordingly it is necessary to examine whether the grounds for insolvency according to §§ 17-19 Insolvenzordnung (InsO) are given. The main reasons for insolvency are inability to pay at the present (§ 17 InsO), in the future (§ 18 InsO) as well as excessive debts of the company (§ 19 InsO).
A company is insolvent according to § 17 II InsO when it is incapable of fulfilling its financial obligations in the present. This also applies to future financial obligations (§ 18 InsO). According to § 19 II InsO a company has excessive debts when its assets can no longer cover its liabilities.
Should these conditions apply to a company, the managing directors and the liquidators of the company are obliged to petition for insolvency within three weeks of knowledge of the above stated circumstances. To petition for insolvency one has to supply a list of assets as well as a list of the creditors/debtors of the company. Once the application has been made, the conditions for starting insolvency proceedings are examined by an expert insolvency practitioner who will be appointed by the court. Should the company’s assets not cover the legal costs, then the petition will be refused and the company will be dissolved immediately.
If there are no grounds for insolvency, there is always the possibility of dissolving the company through a shareholders’ resolution (§ 60 II no. 2 GmbHG). This resolution would need a 75 % majority of the shareholders. Such a resolution would not mean, that the company stops existing immediately. Only the company’s objects would change from doing business to bringing it to an end. This means that all assets have to be sold and all the debts have to be paid. The company can be removed from the companies’ register once the company’s debts and assets have been resolved. It is necessary to notify the dissolving of the company at the companies’ register (§ 65 I GmbG). Furthermore it is necessary to publish the dissolving of the company (§ 65 II GmbHG). This is intended to inform the creditors so that they can contact the company. The winding up is carried out by the managing director unless otherwise stated in the company’s articles. The liquidators are required to register their powers of authority in the companies’ register (§ 67 para. 1 GmbHG). They are also required to register the finishing of the liquidation (§ 77 I GmbHG). Once the winding up has been examined by the court, the dissolving of the company is registered.
If it has to be considered that the company is insolvent, then it is necessary to petition for insolvency. The following questionnaire needs to be added to the petition. In addition a list of creditors and debtors of the company has also to be filed.
Questionnaire
I. statement of grounds of insolvency
- The company is
ٱ not
ٱ able to pay
ٱ probably not able to fulfil the existing liabilities (inability to pay in the future)
ٱ and
ٱ having excessive debts.
ٱ It is a matter of a temporary inability to pay the debts.
II. details of the company/business
- employees
ٱ none since:
ٱ number of employees:
ٱ contracts of employment given notice
ٱ no
ٱ yes, termination date given:
- national insurance contributions
ٱ no arrears
ٱ arrears in an amount of:
- salary/wages arrears
ٱ no arrears
ٱ arrears in an amount of:
- business premises
ٱ no longer in existence since:
The winding up is being conducted from my home where I have the business
documents.
ٱ still at the above given address
ٱ The premises are
ٱ rented
at a monthly rent of:
The tenant is:
The contract is
ٱ not terminated
ٱ is terminated with effect of:
arrears of rent
ٱ none
ٱ of:
ٱ covered by a rent deposit
There is
ٱ no lien enforceable
ٱ a lien enforceable on the following objects:
ٱ a lien enforceable to the whole fittings and fixtures.
III. details of assets
- real estate property
ٱ real estate property none
ٱ owner of real estate property in:
registered in the land registry
under/number: page:
current value of property: DM/Euro
- vehicles
ٱ none
ٱ are leased. Refund from return of vehicles not expected.
ٱ The following vehicles belong to the company:
current value: …………. EUR
- goods and products
ٱ goods ٱ semi finished products
ٱ none
ٱ current value (EUR)
ٱ under reservation of proprietary rights of supplier
ٱ there is an transfer of ownership as security on a debt in an amount of:
- arrears
ٱ none
ٱ in a value of:
ٱ assigned to because of a debt in an amount of:
- office and business equipment
ٱ none
ٱ little value
ٱ a current value of:
- stocks, shares
ٱ none
ٱ yes, details/value:
- cash
EUR
- bank accounts
ٱ none
ٱ yes, name of the bank
value:
- encumbrances on property
ٱ none
ٱ on property ownership:
- objects of value owned by the company
ٱ none
ٱ yes, details:
- other rights
ٱ others, e.g. patents, trademarks
ٱ none
ٱ yes, details:
- life insurances
ٱ none
ٱ yes, details:
life insurance value:
repurchase value:
IV. obligations
in a total amount of: ………….. EUR
ٱ refer to the list of creditors
V. company capital
nominal capital in an amount of …………… EUR has been paid
ٱ in full amount
ٱ in an amount of:
ٱ in cash
ٱ in objects
ٱ obligation of an additional payment by:
VI. advanced payment for insolvency proceedings
ٱ an advanced payment is not possible.
VII. supplementary details
ٱ With regard to the company’s debts I have already made a part payment of:
ٱ The remaining sum can be paid
ٱ up to:
ٱ from:
at the rate of:
ٱ monthly
ٱ weekly
ٱ The business is still in existence.
ٱ I would like to continue the business.
© 2001 Jens Barkemeyer
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