Tax Claims in Insolvency Proceedings

The Federal Ministry of Finance (BMF) has published an updated statement on this topic. The central distinction to be made is whether the tax is to be classified as an insolvency claim or as a mass claim.

In insolvency proceedings, the main distinction is made between two categories of creditor claims:

• Insolvency claims are claims that arose before the opening of the insolvency proceedings. For tax debts that constitute insolvency claims, the tax office is merely an insolvency creditor. It registers its claim in the insolvency proceedings and ultimately receives only the prescribed quota.
  
  
• Mass claims are claims that arise only after the opening of the insolvency proceedings through the activity of the insolvency administrator or the continuation of the business. These must be paid from the available mass in full. Mass claims therefore have to be satisfied completely, otherwise no one would be able to conduct business with the mass.

Income tax or corporation tax

The BMF information clearly shows, in a table organised by type of tax, when each tax claim arises. For example, the tax claim for advance payments of income tax or corporation tax arises at the start of the calendar quarter. The classification as an insolvency claim or a mass claim therefore depends on whether the insolvency opening occurs before or after the start of the relevant quarter. If the date of the insolvency opening is before the quarter begins, the income‑tax (ESt) or corporation‑tax (KöSt) advance payment is a mass claim; if it is after, it is an insolvency claim.

Value‑added tax

With VAT, the time of supply is decisive: if the supply was made before the opening, the VAT to be remitted is an insolvency claim of the tax office, even if the payment is received later. The following examples illustrate this (assuming accrual accounting – VAT assessed on agreed fees):

• A service provided by the insolvent company was performed on 28 September, but the fee was not received until 12 October. In the meantime, insolvency was opened on 9 October. The VAT owed on the agreed fee is – because the supply was made before the insolvency opening – an insolvency claim of the tax office.
  
  
• Since insolvency was opened on 9 October, services supplied in October must have the October VAT liability split into an insolvency claim and a mass claim according to the respective times of supply of those services.

This distinction is particularly important for the motor vehicle tax or the tourism levy, where daily billing requires the tax claims to be divided correctly.

Note: The new clarifications from the BMF provide greater legal certainty, but the matter remains very complex and depends on the details of each case. If a company is in a financially difficult phase, a precise classification of the tax situation is necessary to avoid complications and liabilities. Comprehensive advice is advisable.