A profit resolution, the distribution claim and the actual payment must be reviewed separately in a shareholder dispute.
Your shareholder dispute team
Dispute team for shareholders and managing directors
A shareholder dispute calls for corporate law, litigation strategy and commercial understanding from one team. Mag. Bernhard Brandauer is responsible for the legal advice; depending on the conflict, further specialised lawyers of the firm support safeguards, evidence, negotiations and court enforcement.
Contact the teamThe GmbH has made a profit, but the shareholders dispute the resolution or the payment. A bank transfer does not by itself prove that a valid distribution claim existed.
Review the resolution, accounts, maturity and payment as separate steps.
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The shareholders’ resolution determines whether and how an established balance-sheet profit is used. It is distinct from adopting the annual accounts. The accounts alone therefore do not create a claim to a specific payment.
A valid profit resolution may create a distribution claim. Whether the claim is already due depends on the wording of the resolution and any agreed conditions. A partial payment or accounting entry does not automatically settle the claim.
The shareholders’ resolution determines whether and how an established balance-sheet profit is used. It is distinct from adopting the annual accounts. The accounts alone therefore do not create a claim to a specific payment.
Keep the accounts, notice, agenda, draft resolution and minutes together. The resolution should identify the amount, recipients and payment date.
A valid profit resolution may create a distribution claim. Whether the claim is already due depends on the wording of the resolution and any agreed conditions. A partial payment or accounting entry does not automatically settle the claim.
For every payment, compare recipient, amount, booking text and purpose. A payment to one shareholder also requires checking whether the resolution covered it or whether it had another legal basis.
Section 82 GmbHG protects company assets against payments to shareholders without a permitted legal basis. Section 83 GmbHG provides for repayment to the GmbH. Calling a payment a dividend is therefore not conclusive.
Preserve the ledger, bank evidence, resolution and accounts. If the company does not pursue repayment, analyse representation, resolutions and any corporate enforcement route separately.
No. The shareholders must decide how the profit is used; the accounts alone do not replace that resolution.
Not automatically. Legal basis, resolution, recipient and capital maintenance must be reviewed at the time of payment.
Repayment under section 83 GmbHG is generally made to the GmbH.
Safeguard, challenge and enforce shareholder disputes. Portal for active GmbH conflicts covering first safeguards, resolution challenge, exclusion and preliminary injunction.
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