Subordination
By means of a subordination agreement for his claim , the creditor temporarily waives the fulfillment of his claim in order to better position other (potential) creditors or to prevent a company from becoming overindebted within the meaning of the insolvency regulations .
General
As a rule, a company's liabilities are to be settled in the order in which they are due . The subordination agreement intervenes in this original repayment sequence by changing it from the outset or afterwards. This avoids repayment competition with other creditors. A ranking is established in the event that the company's assets are insufficient to service all of its liabilities.
Legal issues
The subordination agreement is a contract concluded between a creditor and a debtor company , according to which, in the event of liquidation or insolvency of the company , the creditor will only receive his claims repaid once the company has paid all other liabilities. There is an operative fault change contract after § 311 1 Abs. BGB, the suspensory condition contains. The law for the modernization of GmbH law and for combating abuse (MoMiG) of October 2008 regulates the subordination in Section 19 (2) InsO to avoid over-indebtedness under insolvency law. According to this, liabilities for which subordination has been agreed in accordance with Section 39 (2) InsO are not to be recognized .
species
A distinction is made between relative, simple and qualified subordination.
Relative subordination
When relative subordination is an agreement between individual creditors, which serves to determine the ratio of their demands with each other. According to this, a creditor can only demand satisfaction if the creditor, behind whose demand he has - relatively - withdrawn, is balanced.
Simple and qualified subordination
A distinction is also made between simple and qualified subordination. The differentiation criteria of this BGH judgment of January 2001 are identical to those of the Federal Ministry of Finance . The simple subordination agreement provides that the claim is subordinate to the claims of all other creditors. The subordination can refer not only to the present, but also to the future demands. In the case of simple subordination, the withdrawing claim can already be repaid in full or in part when all the priority claims have been met. The subordination takes place only behind the other outside capital , while a subordination in the rank of the equity capital is demanded with the qualified one . In addition, the claim may only be asserted from the freely available annual or liquidation surplus or from the freely available assets exceeding the other liabilities of the company, and only after the satisfaction of all company creditors and on an equal footing with the contribution refund claims of co-shareholders. From a tax point of view, the creditor wants to be treated in the case of qualified subordination as if his claim were statutory capital.
A subordination agreement can, however, also be pronounced retrospectively by a "normal" creditor as part of a restructuring in order to eliminate the threat of over-indebtedness of a corporation or a partnership to which only corporations have assumed personal liability. In the case of over-indebtedness according to Section 19 InsO, there is an obligation to file for insolvency in accordance with Section 92 AktG, Section 64 GmbHG, Section 130a and Section 177a HGB .
Legal consequences
The subordination does not lead to the extinction of a liability, so that it must continue to be recognized in the balance sheet according to Section 266 (3) C HGB. For the over-indebted status, however, since the BGH ruling of January 8, 2001, the liability is to be recognized neither with a simple (in the case of external liabilities) nor with a qualified ( shareholder loan) subordination (Section 19 (2) InsO). The subordination agreement has the consequence that the claim is to be considered in the agreed rank. The MoMiG means that neither simple nor qualified subordination in over-indebtedness is to be taken into account. The subordination is ultimately aimed at warding off over-indebtedness.
International rating agencies recognize such hybrid forms of financing for the debtor in whole or in part as economic equity . Subordinated loans - the main area of application of subordination - can be expected to have at least 50% of their amount to improve the economic equity. That is one of the main reasons for agreeing a subordination in the corporate crisis .
Income tax treatment
The agreement of simple or qualified subordination does not affect the accounting of the liability. In contrast to a debt waiver, the liability does not decrease or expire. This is still owed and represents an economic burden for the taxpayer; only the order of repayment changes. The liability is still to be shown as debt in the company's tax and commercial balance sheet.
Exception:
With the judgment of the Federal Fiscal Court of November 30, 2011 and in the opinion of the tax authorities, a simple declaration of subordination that does not explicitly provide for the possibility of repayment of the liability from other (free) assets (as opposed to repayment from otherwise only future income and profits) , § 5 Abs. 2a ITA used with the result that in the control balance (the balance of trade not) is close out the income statement such binding. According to Section 5 (2) a of the EStG, neither a liability nor a provision may be recognized if the obligation is only to be fulfilled if future income or profits are generated. Since the debtor should not be able to repay from other (free) assets without the clause , the debt (the economic burden) is therefore dependent on income or profit. If the increase in profit is caused by the shareholder relationship, this remains neutral in the amount of the valuable part of the claim by adding a contribution. In the case of corporations, this is technically achieved by deducting a hidden deposit off the balance sheet and at the same time adding funds to the tax deposit account.
Individual evidence
- ↑ Harald Selzner / Dieter Leuering in Volker Römermann (ed.), Munich Lawyers Handbook GmbH Law , § 6, Rn. 97
- ↑ a b BGH, judgment of January 8, 2001, Az .: II ZR 88/99
- ↑ BMF of September 8, 2006, BStBl 2006 I p. 497
- ↑ Jens Siebert / Daniela Lickert, Commercial and Tax Law Treatment of a Waiver of Claims , 2006, p. 27 ff.
- ↑ BGHZ 146, 264, 280
- ↑ Harald Hess, Insolvenzrecht - Großkommentar , Volume 1, 2013, p. 572
- ↑ BFH, judgment of November 30, 2011, Az .: IR 100/10
- ↑ BFH of April 15, 2015 - R 44/14, DStR 2015, page 1551
