The director of a body may be held personally liable for the VAT and payroll tax that the body has failed to pay to the tax authorities. This is only possible in cases of manifestly improper management.
Supreme Court
In a case recently heard by the Supreme Court case Since early 2001, an individual has been a director and co-shareholder of a private limited company (BV) which operates a haulage business. In 2008, this BV ran into serious financial difficulties when a major client left. Although the private limited company did submit VAT and payroll tax returns for September and October 2008, it failed to pay the amounts declared. On 31 October 2008, the company notified the tax office of its inability to pay. In December 2008, the BV was declared bankrupt.
Mismanagement?
A (legally valid) notification of inability to pay does not in itself mean that the director cannot be held liable. However, the notification does shift the burden of proof. The Tax and Customs Administration must now prove that the director acted improperly.
In the case brought before the Supreme Court, the Tax and Customs Administration argues that it is improper that the private limited company’s creditors were paid whilst its tax liabilities were not. In fact, with a view to continuing its business operations, the private limited company did pay the bank, its employees, fuel suppliers and the hauliers it had engaged. The VAT and payroll tax debts incurred during this period remained unpaid. This course of action was a matter of choice on the part of the director of the private limited company, who thereby acted improperly. It may also be relevant that the creditors who were paid upon bankruptcy were of a lower priority than the Tax and Customs Administration.
A sensible manager
The Supreme Court takes as its starting point that it is up to the director to determine which creditors are to be paid and which are not. Only where no reasonable director would act in this way is there a case of improper management. In this regard, all relevant circumstances must be taken into account. The director’s discretion is restricted where the private limited company has decided to cease its activities and it is clear that there will not be sufficient funds to pay all creditors. However, even in such cases, there may be exceptional circumstances which mean that there is no question of improper management.
The Supreme Court has referred the case back to the Court of Appeal in The Hague for further examination. However, it is clear from the Supreme Court’s ruling that it is not necessarily improper to pay certain creditors and not others. This case concerns ‘priority creditors’. These are the creditors who must be paid in order for the company to continue operating.
Curator
The judgment also addresses the fact that, after the private limited company went into liquidation, the liquidator failed to submit the corporation tax return. As a result, the private limited company is missing out on a corporation tax refund of approximately €60,000 arising from the offsetting of losses. Generally speaking, the liquidator is not obliged to submit tax returns on behalf of the bankrupt private limited company or to lodge objections against incorrect tax assessments during the course of the bankruptcy proceedings. In particular, when the estate is empty, the tax obligations of the bankrupt company are often overlooked.
A similar problem arises in a case in which the liquidators ask the insolvency judge for permission to take over and subsequently withdraw a tax appeal brought by a bankrupt private limited company. This permission is granted. The director of the bankrupt private limited company lodged an appeal against this decision, but the court ruled that only the liquidators were interested parties. However, the Supreme Court disagrees and rules that a bankrupt company itself must have the opportunity to challenge a decision by the insolvency judge granting the liquidators permission to take over or withdraw tax proceedings.