Liability of the managing director despite deletion of the GmbH
The Verwaltungsgerichtshof München (VGH München, Bavarian Higher Administrative Court) ruled by decision of 30 July 2026 – 4 CS 26.932 – in proceedings for interim legal protection that the liability of a managing director for trade tax debts of a GmbH does not cease merely because no insolvency proceedings were opened over the company’s assets and the GmbH was subsequently deleted from the commercial register. The managing director had applied for an order granting suspensive effect to her objection against the liability notice; the VGH dismissed her complaint against the rejecting decision of the Verwaltungsgericht München (Munich Administrative Court). The decision is based on the summary examination required in interim proceedings. The decision is final and not subject to appeal, but the merits of the case have not thereby been finally decided.
According to the decision, the decisive factor is whether the underlying tax claim still exists as a matter of substantive law at the time the liability notice is issued. If this is the case, the managing director may be held liable for third-party tax debts, provided that the further requirements for managing director liability are met.
Background to the proceedings
Liability notice for trade tax debts
The subject of the proceedings was a liability notice for approximately EUR 370,000 in outstanding trade tax. The notice was addressed to the managing director of a GmbH whose business activity consisted of leasing real estate and vehicles to medical tourists.
The claim was based on § 69 sentence 1 AO (Abgabenordnung, German Fiscal Code) in conjunction with § 34 AO (German Fiscal Code). Under these provisions, statutory representatives may, under certain conditions, be liable for tax debts of a company they represent.
Insolvency and deletion from the commercial register
In response to the liability notice, the managing director argued that the GmbH had filed for insolvency in April 2023. The opening of insolvency proceedings had been refused for lack of assets. As a result, the company had been deleted from the commercial register.
In the managing director’s view, this should have led to the trade tax debt of the GmbH being extinguished in connection with the insolvency case pursuant to § 47 AO (German Fiscal Code). This argument was unsuccessful before the VGH München.
Continued existence of the tax claim as a prerequisite for liability
Liability for a third-party debt
The VGH München focuses on the fact that the party liable is not responsible for her own tax debt, but for a third-party debt. Recourse by way of liability therefore requires that the primary claim, i.e. the tax claim against the company, still exists as a matter of substantive law when the liability notice is issued.
In the case decided, the court denied that the trade tax debt had been extinguished solely as a result of the deletion of the GmbH from the commercial register.
Arising of the trade tax debt
According to the decision, the trade tax debt arose by operation of law. The basis for this is § 38 AO (German Fiscal Code) and the expiry of the respective assessment period pursuant to § 18 GewStG (Gewerbesteuergesetz, German Trade Tax Act).
The VGH München therefore assumed that the tax claim had not ceased to exist merely because the insolvency proceedings were not opened and the GmbH was subsequently deleted.
No termination of tax obligations through deletion from the register
§ 47 AO not exhaustive, but no extinguishment through complete termination
The VGH München points out that the grounds for extinguishment listed in § 47 AO are not exhaustive. Nevertheless, according to the decision, the complete termination of a GmbH as a corporation does not result in the extinguishment of claims arising from the tax debtor-creditor relationship.
As justification, the court states that insolvency does not affect legal capacity under tax law, even in the case of legal entities. Deletion ex officio therefore does not automatically mean that the GmbH can no longer be the holder of tax rights and obligations.
Continued existence under tax law despite deletion from the commercial register
According to the decision, a GmbH’s tax liability does not necessarily end upon deletion from the commercial register. As long as obligations under tax law exist, the company must continue to be taken into account for tax law purposes despite its deletion under register law.
In the view of the VGH München, it follows that the tax claim cannot be deemed extinguished under § 47 AO if the analysis is based solely on the deletion of the company.
Significance of the decision for liability under § 69 AO
According to the decision, deletion of the tax debtor from the register may indeed preclude enforcement directly against the GmbH. However, it does not follow from this that the tax claim ceases to exist as the primary debt for the liability proceedings.
In this context, the VGH München emphasizes that a different outcome would call the liability mechanism into question precisely in insolvency cases. If the primary debt were automatically treated as extinguished for liability proceedings as well by reason of the deletion of the company, liability in such a constellation would largely be rendered ineffective.
The following points are particularly relevant for the assessment:
- the arising of the trade tax debt by operation of law,
- the continued existence of the substantive tax claim at the time of the liability notice,
- the continued applicability of tax obligations despite deletion under register law,
- the distinction between enforcement against the company and the assertion of liability against the managing director.
Classification under company law
In company law, it is often discussed in comparable contexts whether a GmbH that has been deleted due to alleged lack of assets has in fact ceased to exist or continues to exist.
According to the prevailing view, a company is only apparently fully terminated if it subsequently emerges that assets still exist. In such a case, the company continues to exist as such.
By contrast, the decision of the VGH München concerns the tax law question of whether the deletion of the GmbH precludes a continuing tax claim and liability based on it. In the case decided, the court answered this in the negative – albeit only within the framework of the summary examination in the interim proceedings.
Tax law advice on managing director liability
The decision makes clear that insolvency, refusal to open proceedings for lack of assets, and deletion of a GmbH from the commercial register do not automatically exclude the liability of managing directors for trade tax debts. For companies, managing directors, investors, and high-net-worth private individuals, this may give rise to significant interfaces between tax law and company law. MTR Legal Rechtsanwälte advises on issues relating to liability for tax debts and related matters in a corporate context; further information is available at legal advice in tax law.
