Insolvency contestation: tax payment not gratuitous in cases of "only" doubtful tax liability

The judgment of 31.07.2025 (IX ZR 32/24) was based on an insolvency avoidance action against a federal state due to tax payments by the insolvency debtor. Following an external wage tax audit, the insolvency debtor, a non-profit association, paid wage tax plus solidarity surcharge and church tax for several employees (management and related parties); the association did not contest the corresponding assessment notice. In the following year, the insolvency debtor made an advance VAT payment on the remuneration for services provided by a real estate company for the sale of a property owned by the association, whereby the company issuing the invoice, which was based in Switzerland, had only been founded two days before the invoice was issued. After the turnover was also stated in the annual VAT return, it was assessed. Around 15 months later, insolvency proceedings were opened on the association's assets in self-administration upon its own application. The administrator claimed repayment of the aforementioned tax payments from the defendant federal state, arguing that the services were free of charge.

The BGH overturned the appeal judgment partially granting the claim insofar as the defendant had been ordered to repay the disputed VAT.

The VAT payment was to be assessed in accordance with the principles of gift avoidance in a two-person relationship. The insolvency debtor had fulfilled his own liability with the payment. The payment was also to be regarded as a service for consideration. It is true that the VAT was not owed by the association under substantive law, as a domestic GmbH, not the invoice issuer, had provided the service and was therefore to be regarded as the service provider within the meaning of VAT law. However, it was not sufficient for gratuitousness within the meaning of Section 134 (1) InsO if the debtor had considerable doubts about the existence of the VAT liability. The decisive factor is whether the debtor, through its own tax declaration, has established a payment obligation which, from an objective point of view, obviously and without serious doubt deviates from the material legal situation.

Furthermore, the court of appeal had rightly decided that the wage and ancillary taxes on excessive salary components of several employees were not gratuitous payments within the meaning of § 134 InsO. Once again, the principles of gift avoidance in a two-person relationship were decisive. The payment of own tax and duty debts, as in this case due to the wage tax payment obligation pursuant to Section 41a (1) EStG, is remunerated as the fulfillment of claims arising from statutory obligations. The liabilities had also been established for a consideration, as they had arisen under substantive law. The taxable event of Section 38 EStG was realized with the payment of the excessive salary, even if there was no legal entitlement to these parts of the salary.

In contrast to this, the BGH has repeated that wage tax paid on a mere sham employment relationship must be repaid as a gratuitous benefit. This is because sham transactions are not taxable in accordance with Section 41 (2) sentence 1 AO. In addition, gratuitousness is to be assumed irrespective of the tax assessment, as the debtor has contributed to the establishment of the tax liability by declaring the wage tax in the knowledge that it is not owed in the case of a sham employment relationship.