Shareholder loans and insolvency audits: professional liability risks in crisis consulting

A BGH ruling tightens the liability standards for professional services in the case of over-indebtedness assessments. Even informal statements can lead to claims for damages.

Everyday consulting situation with pitfalls

Anne and Cornelius Nickert describe a common scenario: A GmbH has 80,000 euros of over-indebtedness, while a shareholder loan of 100,000 euros exists. Tax advisors often recommend subordination declarations to restructure the balance sheet and continue business operations. It becomes problematic when advisors wrongly assume that shareholder claims are automatically subordinated. This misjudgement ignores BGH case law and can lead to considerable liability consequences.

Precedent with far-reaching consequences

On June 6, 2013, the Federal Court of Justice ruled on a tax consultant who was exclusively commissioned to prepare balance sheets. His statement that he did not recognize any over-indebtedness under insolvency law delayed the necessary insolvency application and significantly worsened the financial situation. The court established clear liability principles: Anyone who assesses insolvency maturity beyond the original assignment bears responsibility for any damages incurred. Damages are calculated by comparing the assets between the hypothetical timely filing of the application and the actual filing.

Contributory negligence rule limits risks

Companies and their management have an independent duty of examination with regard to insolvency maturity. Exclusive reliance on statements made by advisors constitutes contributory negligence and reduces corresponding claims for damages.

Stricter legal situation after 2014

A further BGH ruling from February 6, 2014 further tightened the requirements. Tax advisors who address insolvency issues without a final assessment must explicitly refer to any special assignments required. Even formulations such as "purely balance sheet over-indebtedness" can give rise to liability, as they implicitly exclude over-indebtedness under insolvency law.

Practical consequences for consultants

Case law requires a strict separation between tax accounting and valuation under insolvency law. Over-indebtedness statuses must be prepared at liquidation values, revealing hidden reserves and encumbrances. Declarations of subordination should only be recommended after careful examination under insolvency law, ideally on the basis of separate, documented advisory mandates.

Recommendations for risk-conscious practice

Professional services should categorically avoid informal statements on insolvency readiness. Specialized insolvency advice requires written mandate agreements, comprehensible documentation and integration of the General Terms and Conditions.