If the insolvency debtor collects accounts receivable on its bank account during the application proceedings without the knowledge and consent of the provisional administrator, this does not give rise to any liabilities of the estate pursuant to section 55 (4) InsO
Liabilities of the estate pursuant to section 55 (4) InsO arising from VAT liabilities shall only arise at the expense of the provisional insolvency administrator within the scope of his powers. With regard to the creation of liabilities of the estate pursuant to Section 55 (4) InsO, the collection of payment by the provisional insolvency administrator is to be taken into account. This is the case if the insolvency court prohibits third-party debtors from making payments to the insolvency debtor, the provisional administrator is authorized to collect the claim and collects this claim in the special account of the proceedings.
If the provisional administrator does not collect the payment within the scope of the right granted to collect the claim, a liability of the estate only arises if there is a collection in connection with other legal powers of the provisional administrator.
This is the case if the provisional administrator agrees to the collection of third-party debtor payments on the insolvency debtor’s account. If the provisional administrator does not consent, sections 21 (2) sentence 1 no. 2, 24 (1), 81, 82 shall apply. If the third-party debtor makes a debt-discharging payment to the insolvency debtor in accordance with sections 24 (1), 82 InsO, the payment received by the insolvency debtor is finally collected under VAT law when the payment is received in his bank account. This does not give rise to liabilities of the estate pursuant to section 55 (4) InsO, as section 82 InsO does not grant the weak provisional insolvency administrator any power of disposal, but merely enables the prevention of ineffective disposals by the insolvency debtor. The effects of § 82 in conjunction with § 24 para. 1 InsO – debt-discharging third-party debtor payment and thus realization of the relevant VAT facts – also occur without the intervention of the provisional insolvency administrator, so that no obligations under § 55 para. 4 InsO should arise from this.
If the provisional insolvency administrator demands the transfer of the bank balance to the special insolvency account of the proceedings, this also does not give rise to a VAT obligation pursuant to Section 55 (4) InsO, as the VAT liability already arises with the prior receipt of the VAT payment between the insolvency debtor and the third-party debtor.
The decision (BFH V R 17/23) was obtained by BRRS partner Dr. Stephan Schlegel.