Corona VIII: On the suspension of the obligation to file for insolvency for companies damaged by the Corona epidemic
On 25.03.2020, the Bundestag unanimously adopted the draft law to mitigate the consequences of the Covid 19 pandemic in civil, insolvency and criminal proceedings. Among other things, the package includes a law on the temporary suspension of the obligation to file for insolvency and on limiting the liability of executive bodies in the event of insolvency caused by the Covid 19 pandemic.
The obligation to file for insolvency and the payment prohibitions have been suspended until 30 September 2020, unless the insolvency is not due to the effects of the Covid 19 pandemic or there is no prospect of eliminating an insolvency that has occurred. If the debtor was not insolvent on 31 December 2019, it is assumed that the insolvency maturity is due to the effects of the COVID 19 pandemic and that there are prospects of eliminating an existing insolvency.
In addition, incentives are to be created to provide new liquidity to the affected companies and to maintain business relations with them. For a three-month transitional period, the right of creditors to apply for the opening of insolvency proceedings will also be suspended.
We have made the effects on insolvency law of contesting payments the subject of a publication in the professional journal "Neue Zeitschrift für Insolvenz- und Sanierungsrecht" (2020, issue 9, p. 352).
Corona VII: Tax relief
Corona determines our everyday life as lawyers.
There are hardly any companies and few contracts that are not affected. The legal questions that arise in this regard are now easier to handle, even if each case is different.
The German legislator has also quickly created clarity to help companies.
In addition to emergency aid and aid loans, tax relief has now also been approved for companies affected by Corona. We have summarized the most important regulations for you here:
- liquidity support
Businesses and companies that will report a loss this year due to the consequences of the corona pandemic will receive liquidity support. This will be granted to companies by offsetting foreseeable losses against profits for 2019.
Therefore, in addition to the refund of tax prepayments already made for 2020, companies can now also apply for a refund of amounts paid for 2019 from their competent tax office, based on a lump-sum loss calculated for the current year. This measure is intended to create the necessary liquidity for small businesses and self-employed persons in the retail, cultural and catering sectors.
- deferral of tax payments
If companies are unable to make tax payments due this year due to the economic consequences of the Corona pandemic, these payments should be deferred on request for a limited period of time and in principle without interest. Companies can submit the application to their tax office until 31 December 2020.
There are no strict requirements for the approval of the deferral. Companies must demonstrate that they are directly affected. However, they do not have to provide detailed evidence of the value of the losses incurred. This supports the liquidity of taxpayers by postponing the date of tax payment. This measure concerns income and corporation tax and VAT.
A deferral of motor vehicle tax is also possible. A corresponding deferral application must be submitted to the responsible main customs office by 31 December 2020.
- adjustment and refund of advance payments
Companies, the self-employed and freelancers can also have the amount of their advance payments adjusted for income and corporation tax. The same applies to the measurement amount for the purposes of trade tax advance payments. They can submit an application for this to their tax office. As soon as it is clear that taxpayers' income in the current year is likely to be lower than expected before the Corona pandemic, the advance tax payments will be reduced quickly and easily. Advance payments on income and corporation tax already made for 2020 can also be refunded on application. This will improve the liquidity situation.
- suspend enforcement measures
The enforcement of overdue tax debts is to be waived until the end of the
Surcharges for late payment, which are legally due during this period, are to be waived. This applies to income and corporation tax as well as value added tax.
- bonus payments to employees
Employers can now pay their employees subsidies and support up to an amount of 1,500 euros in 2020 tax-free or as wages in kind. This is subject to the condition that allowances and benefits are paid in addition to the wages owed in any case.
You can find further information under: https://www.bundesfinanzministerium.de/Content/DE/Standardartikel/Themen/Schlaglichter/Corona-Schutzschild/2020-03-19-steuerliche-Massnahmen.html
Corona VI: Important information for employers
According to the Federal Ministry of Finance, employers can now pay their employees subsidies and support up to an amount of 1,500 euros tax-free or as non-cash benefits. This covers special benefits that employees receive between 1 March 2020 and 31 December 2020. This is subject to the condition that the allowances and benefits are paid in addition to the wages already owed. The tax-free benefits must be recorded in the payroll account. Other tax exemptions and valuation allowances remain unaffected. The allowances and benefits also remain non-contributory in social insurance.
The tax and contribution-free nature of the special payments recognises the special and indispensable contribution made by employees during the Corona crisis.
(Source: https://www.bundesfinanzministerium.de/Content/DE/Pressemitteilungen/Finanzpolitik/2020/04/2020-04-03-GPM-Bonuszahlungen.html )
Corona V: Important information for business clients
we would like to briefly summarise the grateful wealth of information provided by governments and business associations on the legislator's aid measures in two important points for you:
- Emergency Aid Programme of the State of Baden-Württemberg
Support under the emergency aid programme is intended to secure the economic existence of solo self-employed persons, commercial enterprises, social enterprises and members of the liberal professions. Funding is provided in the form of a one-off, non-repayable grant, initially for three months, of up to
- 9,000 euros for solo self-employed persons and companies with up to five employees
-15,000 euros for companies with up to ten employees,
- 30,000 euros for companies with up to 50 employees.
The local Chambers of Commerce and Industry as well as the Chambers of Skilled Crafts and Small Businesses are responsible for the preliminary examination of the contents of all applications, also for members of the liberal professions.
We have examined the application (https://assets.baden-wuerttemberg.de/pdf/200325_Antrag_Soforthilfe-Corona_BW.pdf ) for you:
A central problem of the application is the indication of the reason for the economic situation threatening the existence of the company or the liquidity bottleneck or slump in turnover. A simple reference to the Corona pandemic and the related serious loss of demand and production, interrupted supply chains, waves of cancellations, loss of fees, massive losses of turnover and profits are not sufficient grounds for a grant.
It must be made clear at this point that and why the running costs (of what kind and amount) cannot be covered by the company itself now or in the near future.
It must be stated to what extent this can no longer be provided without additional equity or borrowed funds only after 11 March 2020 as a result of the effects of the corona pandemic. The bottleneck, which may even lead to a situation threatening the existence of the company, must be directly attributable to the corona pandemic. This means that it should be stated to what extent the company would not have experienced a liquidity bottleneck under normal circumstances (without the corona pandemic and its effects) due to its current obligations.
It may therefore be helpful or necessary for your advisors, in particular business lawyers and tax advisors, to assist in data collection and formulation.
The programmes of L-Bank and Bürgschaftsbank were adapted to the Corona crisis (https://www.l-bank.de/artikel/lbank-de/tipps_themen/programmangebot-der-l-bank-bei-abflauender-konjunktur-und-krisensituationen.html )
Here too, it may therefore be necessary for your business lawyers to be involved in data collection and formulation, but also in negotiations.
Consult us on the details. We will keep you informed.
Corona IV: Consequences of the corona virus for contractual obligations in business, especially in trade
The contracts concluded are decisive in the first instance. The information given here can therefore not be conclusive.
Contracts often contain clauses on "higher force". These are referred to internationally, especially in English language contracts also with the French term "Force Majeur".
Such contractual clauses are usually very general. Natural disasters, legal restrictions such as embargoes or even armed conflicts, which are beyond the control of the contracting parties, are often found in these clauses.
The aforementioned legal restrictions can also result from an epidemic such as the coronavirus. So even if epidemics are not explicitly mentioned, they are taken into account. In the future, international commercial law firms such as Dr. Einhaus & Partner will probably include more epidemics in contract clauses in order to create more legal certainty and avoid problems of interpretation.
If contracts do not contain force majeure clauses, it is necessary to check which law is applicable and what this law says on this issue. German law provides for an exemption from the obligation to perform if performance is objectively impossible. Then claims for damages are also excluded in principle.
However, it should be emphasized that in international trade the UN Convention on Contracts for the International Sale of Goods is very often applied. This provides for similar consequences.
In principle, the parties must do everything possible to "save" the contract, i.e. they must not culpably enter into the crisis without taking the necessary precautions. Otherwise, a claim for damages may arise.
Of course, an amicable solution should take precedence in order to maintain the contractual relationship, provided that it does not involve one-off services, especially deliveries containing perishable goods.
We are happy to help you with any questions you may have!
Corona III: Sick leave by telephone
Sickness notifications are now easier to make: patients with mild respiratory diseases can have their doctor write a sick note by telephone. This is to prevent the coronavirus from spreading.
In order to relieve doctors in the coronavirus crisis, patients with mild diseases of the upper respiratory tract can more easily take sick leave for up to seven days.
Patients do not need to visit a doctor's practice for this; a telephone consultation with the doctor is sufficient. This was agreed by the National Association of Statutory Health Insurance Physicians (KBV) and the Central Association of Statutory Health Insurance, as both sides announced.
This agreement is valid immediately and initially for four weeks. According to the statement, it will apply to "patients suffering from mild upper respiratory tract diseases who do not exhibit severe symptoms or meet criteria of the Robert Koch Institute (RKI) for suspected infection with Covid-19".
Corona II: Can I stay at home if the kindergarten or school is closed because of Corona?
This question is certainly asked by many parents of young children or school-age children. In particular, one would not like to take advantage of the grandparents, since they belong to the "endangered" group of people.
In principle, however, parents must look for other forms of care for the child(ren) - in fact, healthy ones. However, if they have no one, a discussion with the employer must be sought in order to find a joint solution (e.g. home office, reduction of overtime, accumulation of minus hours which are later reduced, unpaid leave).
If I still can't find someone to take care of me and a solution with the employer is not possible, § 616 BGB (German Civil Code) may help: Whoever is prevented from coming to work for a personal reason through no fault of their own continues to receive their salary. But be careful, because this paragraph can be excluded by the employment contract or the collective agreement.
Susan Salar, specialist lawyer for labour law
Corona I: Compensation from the state in case of quarantine
Short-time work due to corona virus: Apply for short-time allowance
If the state quarantines people because of the corona virus, there is compensation for loss of wages or turnover for the self-employed. This is regulated in the Infection Protection Act. In the case of short-time work, there may be short-time work compensation from the employment agency. For example, the German Federal Employment Agency's notice that companies that order short-time work due to the worldwide cases of illness caused by the corona virus, which leads to a loss of remuneration for their employees, can apply for short-time work compensation (https://www.arbeitsagentur.de/news/kurzarbeit-wegen-corona-virus). In consulting practice, it will certainly have to be pointed out that companies that wish to apply for short-time work compensation due to the effects of the corona pandemic must notify the responsible employment agency in advance. This agency will then check whether the conditions for the benefit are met.
Infection Protection Act: Entitlement to compensation for loss of earnings
The regular 14-day seclusion periods in cases of suspected Covid-19 infection inevitably lead to the question of who bears the risk of loss of earnings in the employment relationship, also in the case of self-employed persons, and whether, for example, state authorities are responsible for the loss of earnings in the case of employees or turnover in the case of self-employed persons.
To refer to § 615 BGB (remuneration in case of default of acceptance and in case of business risk) is only correct at first glance. Although the employer bears the remuneration risk, the employees do not perform their work, because they are separated by official order in order to avoid the further spread of contagious diseases (§ 1 para. 1 IFSG), they cannot work at all.
If departing employees and those suspected of being infected are separated (i.e. put into quarantine), they are entitled to compensation according to § 56 para. 1 sentence 2 IFSG, which is based on the loss of earnings (§ 56 para. 2 sentence 1 IFSG).
How high is the compensation claim?
For the first six weeks, it is granted in the amount of the loss of earnings, and from the beginning of the seventh week in the amount of the sickness benefit pursuant to § 47 para. 1 SGB V, provided that the loss of earnings does not exceed the annual earnings limit applicable to the statutory health insurance obligation (§ 56 para. 2 sentences 2, 3 IFSG). Loss of earnings is defined as the remuneration (§ 14 SGB IV) to which employees are entitled to a reasonable amount of their regular working hours after deduction of taxes and social security and employment promotion contributions or corresponding social security expenses (net remuneration). This amount is increased by the short-time working allowance (see above) and the subsidised winter allowance to which the employees would be entitled if they had not been segregated.
Entitlement for employees and for self-employed persons
What now applies to employees and self-employed persons:
For employees, the company pays compensation during the first six weeks. The company has a claim for reimbursement against the state (§ 56 para. 5 p. 2, 3 IFSG). This claim for compensation also takes precedence (according to h.M.) over the claims for continued remuneration under § 3 of the Continued Remuneration Act (EFZG). It is not the illness that is the reason for "not working", but the official order that leads to the state's obligation to pay compensation.
The above explanations apply accordingly to self-employed persons. If their livelihood is threatened, they may also be reimbursed for additional expenses upon application, such as, to an appropriate extent, reimbursement of continuing unfunded operating expenses (§ 56 (4) IFSG).
Observe deadline for submitting applications
Claims for compensation must be submitted to the competent state authorities within a period of three months after the end of the separation (cf. § 54 IFSG, the health authorities are regularly responsible, under certain circumstances also the pension offices).