A loss cannot be recognised for tax purposes when insolvency proceedings are opened regarding the liquidation of a GmbH.

If the entrepreneur has directly or indirectly held an interest of at least 1% in the capital of a corporation within the last five years, the gain on the disposal of the shares held is taxable operating income.

This liquidation gain must be determined in accordance with generally accepted accounting principles. Accordingly, the realisation principle applies in particular. However, such a determination cannot yet be made when insolvency proceedings are opened regarding the liquidation of a company. This was the legally binding decision of the Düsseldorf Finance Court.

A liquidation loss can only be claimed for tax purposes in the year in which the amount of the loss is actually and finally determined. As a rule, this is not the case until the insolvency proceedings have ended and the final distribution has been communicated. The mere opening of insolvency proceedings, on the other hand, is not sufficient, even if a total default appears possible or imminent at that time. The only exception would be if the opening of insolvency proceedings were refused for insufficiency of assets.

Note: The timing of the realisation of a loss is frequently the subject of court proceedings. If in doubt, consult your advisor so that any losses incurred can be taken into account for tax purposes.

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