A tax adviser prepared the annual financial statements of a German limited company, a GmbH. The company later became insolvent. Its insolvency administrator sued the adviser for damages. He argued that the adviser had known of repeated losses and should have warned the company.
On 26 January 2017 the Federal Court of Justice ruled on the case (IX ZR 285/14). An adviser who prepares the annual statements must warn the client of a possible ground for insolvency, and of the managing director’s duty to examine it. This applies when the signs are obvious and he must assume that the client is not aware of the risk. Before, the court had required such a warning only in narrower cases.
Since 1 January 2021 the rule is written into law. Section 102 of the StaRUG names tax advisers, auditors and lawyers. They must warn the client wenn entsprechende Anhaltspunkte offenkundig sind und sie annehmen müssen, dass dem Mandanten die mögliche Insolvenzreife nicht bewusst ist, if the signs are obvious and they must assume that the client is not aware of the possible insolvency.