Actual managing director
A de facto managing director is a person who actually acts like a managing director of a GmbH without being formally appointed as managing director and entered in the commercial register and thus being the legal representative of the GmbH. A prerequisite for the assumption of factual management is an outward-looking action that is usually attributable to the management.
Motives for factual management
Actual management often occurs when a managing director was not properly appointed out of carelessness or a so-called straw man is put forward as the appointed managing director of a GmbH. The exercise of the management of a GmbH can be prohibited if convicted of certain offenses. However, this often does not prevent those affected from continuing their business activities and pulling the strings of a GmbH behind the scenes.
The assumption that a person acts as a de facto managing director is supported by the fact that they are not formally appointed as managing director by resolution (and are not entered in the commercial register), but that they actually manage the company with the consent of the nominal managing director.
Legal representation of the GmbH
The actual managing director is not a managing director i. S. d. Section 35 GmbHG . Since he does not represent the GmbH legally, no declarations or administrative acts intended for the GmbH can be made known to him. A tax assessment made known to him for the GmbH is not effectively disclosed. Accordingly, the de facto managing director cannot represent the GmbH, i.e. he cannot lodge or raise an objection or lawsuit on behalf of the GmbH. In the absence of effective representation, the GmbH is in principle neither entitled nor obliged from the contracts concluded for it by the de facto managing director, but must, if necessary, have the declarations on the principles of tolerance and proxy authorization attributed to it.
Tax liability
In addition to the formally appointed managing director of a GmbH registered in the commercial register, the de facto managing director can be considered as a liability debtor when it comes to civil liability , tax liability in accordance with §§ 69, 71 AO and criminal liability for economic offenses goes. Anyone who acts as a de facto managing director destroys the z. B. as a shareholder limited liability according to GmbH rules and justifies his full liability as a factual managing director, z. B. for tax debts of the GmbH ( § 69 AO). The tax liability of the actual managing director in addition to the nominal managing director is legally relevant. When making a claim, however, it must always be considered within the scope of the exercise of discretion that all nominal and de facto managing directors are used. The assumption of a de facto managing director does not conflict with the fact that an appointed (nominal) managing director exercises management alongside him. However, the de facto managing director must occupy a prominent position next to the appointed one. Actual management is assumed if the actual managing director fulfills at least six of the following eight criteria:
- Determination of corporate policy
- Business organization
- Hiring employees
- Determination of the level of salaries
- Design of business relationships with contractual partners
- Negotiating with Lenders
- Making decisions in tax matters
- Controlling the accounting
The details for the affirmation of the factual management result from the case law of the Federal Fiscal Court .
Disclaimer of objection
As a liability debtor, the de facto managing director can also raise objections to the tax liability, as he is not prevented from making these objections against the ancillary tax liability by Section 166 AO. Since he is not legally authorized to object to the tax assessment in his own name or on behalf of the GmbH, he, as a liability debtor, does not have to be countered with the final tax liability. There is therefore no exclusion of objection.
Civil liability
The civil law liability of the de facto managing director towards the GmbH is disputed in detail.
A personal liability of the actual managing director due to breach of duty towards the GmbH according to Section 43 (2) GmbHG is assumed if it “has taken the fate of the company into its own hands - not only through internal influence on the statutory managing directors, but also through its own, externally emerging action usually attributable to the management has that he is also responsible for filing the bankruptcy petition on time ”.
It is not believed that it also has a direct liability arises, that is a direct personal liability of the de facto manager to a third party, which has acted against the de facto CEO for the GmbH. This does not apply to the area of tax liability.
The actions and knowledge of the actual managing director as well as that of the nominal managing director are attributed to the GmbH.
Obligation to file for bankruptcy
The de facto managing director is liable to prosecution if he does not file for insolvency despite the reason for insolvency. This obligation also applies to the nominal managing director (s) of the GmbH.
Individual evidence
- ↑ Adolf Baumbach , Alfred Hueck : Law regarding limited liability companies , (short title: GmbHG ), CH Beck, Munich 2017, § 35 Rn. 9
- ^ Sächsisches FG May 2, 2001 - 2 K 1237/99, EFG 2001, 1098.
- ↑ BGH, judgment of May 10, 2000 - 3 StR 101/00
- ↑ BayObLG , judgment of February 20, 1997 - 5 St RR 159/96, NJW 1997, 1936.
- ↑ See Hermann Pump, Herbert Fittkau: Avoiding liability for tax debts of the GmbH. With checklists and typical liability cases from practice , Erich Schmidt Verlag, 1st edition 2009, ISBN 978-3-503-11657-7 . Pp. 129-141; Bruschke in DStZ 2012, 407.
- ↑ BGH , NJW 1988, 1789 (1790).
- ^ KG , NZG , 2000, 1032.
- ^ Hermann Pump, Herbert Fittkau: Avoiding the liability of the GmbH managing director for tax debts of the GmbH. Schmidt, Berlin 2012, ISBN 978-3-503-13666-7 .
- ↑ OLG Jena NJOZ 2002, 1558.
