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Dissolution of a GmbH Due to Opening of Insolvency Proceedings Does Not Automatically Trigger a Loss Realisation

29.09.2022

(updated on

07.04.2026

)

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In the case at hand, at the beginning of 2014 the claimant acquired shares in the GmbH concerned in the nominal amount of one euro and granted the GmbH a loan of 320,000 euros in order to avert insolvency. As security, the GmbH transferred to the claimant a spare parts warehouse with a value of 40,000 euros and vehicles with a value of 38,000 euros.In the same year insolvency proceedings were opened in respect of the GmbH, which led to the dissolution of the GmbH. In addition, insufficiency of the assets to cover the costs was notified.The decision of the tax court of Düsseldorf of 12 April 2022 concerned the dispute whether the GmbH was without assets at the time of its dissolution, that is, at the time of opening of the insolvency proceedings. In that case a dissolution loss would have had to be taken into account.For the period of 2014 the claimant sought recognition of a loss under section 17 of the Income Tax Act in the amount of 320,001 euros. This amount was made up of the loan of 320,000 euros and the one euro she had paid to acquire the shares.The insolvency administrator’s report showed that loan repayments in the amount of 16,000 euros had been made by the GmbH to the claimant and that assets amounting to 44,000 euros were available for the insolvency estate. In addition, the claimant had partially sold the vehicles.The tax court held that the GmbH was not without assets at the time of the dissolution resolution. This was evident from the insolvency administrator’s report. Recognition of a loss was not possible because the claimant’s loan did not have the character of equity substituting capital and it was not foreseeable in the 2014 assessment period whether subsequent acquisition costs would arise.

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