Temporary law on transparency turboliquidation
The Temporary Act on Transparency Turboliquidation came into force on 15 November 2023. The consequences of this law and the additional conditions that must be met have been written about before (see, for example, the article from 22 March 2023). Despite the increased requirements, turboliquidation is still a good tool for winding up companies with no operations and assets after 15 November 2023.
Nevertheless, in the run-up to 15 November 2023, a marked increase in the number of turbo liquidations has been visible. The enactment of this law combined with increased efforts by tax authorities to collect deferred corona tax debts seem to be important factors in this regard.
Impact on dissolutions before 15 November 2023
The Rotterdam District Court recently ruled on a turboliquidation that took place on 14 November 2023, i.e. 1 day before the new law came into force. The dissolution was registered in the trade register on 16 November 2023.
A creditor of the company then filed for bankruptcy of the now dissolved company on 8 December 2023. According to established case law, this is possible, provided there is prima facie evidence of facts and circumstances that make it plausible that there are still assets and that the other requirements for bankruptcy have also been met. Reference is then often made to a possible claim by the dissolved company against the director for mismanagement because financial statements were not published on time or because the company’s administration was allegedly not in order. This claim against the director is a ‘benefit’ to the company that can be realised by a trustee in bankruptcy. The applicant has argued the same in these proceedings but has not made it sufficiently plausible.
More interestingly, the applicant also pointed out that the rules following the Temporary Act on Transparency Turboliquidation had not been complied with by the company. Creditors had not been informed at all, nor had the director filed documents with the trade register. In the run-up to the oral hearing, the former director only sent an e-mail to the court stating that the company had been deregistered due to business termination. However, the court ruled that Act Temporary Transparency Turboliquidation Act does not apply to dissolutions that took place before 15 November 2023. Whether the rules of that Act were complied with is therefore irrelevant.
The conduct of the director in question may not be considered chic by everyone; it did not violate the (then applicable) law. With no summary evidence of possible gains, the bankruptcy petition is dismissed.
Looking for a corporate law lawyer?
Would you like to know more about the dissolution of a company, turboliquidation or a request to reopen the liquidation? Feel free to contact Rob Steenhoek of LVH Advocaten. He specialises in corporate law and will be happy to help you.
