We explore the complexities of company liquidation, distinguishing between voluntary liquidation and insolvency. It addresses reasons for liquidation, process duration, associated costs, and the crucial roles of a liquidator. we aim to provide businesses with a clear, concise understanding of the liquidation process and its implications.
Companies are not only "born", i.e. founded, they also "die", i.e. end voluntarily due to liquidation or insolvency. We would be happy to answer the 6 most frequently asked questions of our clients regarding liquidation.
What are the differences between voluntary liquidation and insolvency liquidation?
Voluntary liquidation
The dissolution of the company may be effected by voluntary liquidation if the shareholders or partners of the company decide to dissolve the company. In this case, the liquidation takes place on a voluntary basis and not due to insolvency or official order.
Insolvency
The dissolution of a company can also occur through insolvency. Insolvency occurs when the company is no longer able to pay its debts and becomes insolvent. In this case, insolvency proceedings can be initiated. Insolvency proceedings usually begin with an application for the opening of insolvency proceedings by the company or by a creditor. The court will then appoint a provisional insolvency administrator to manage the company during the insolvency proceedings.
What are the key steps involved in voluntary liquidation in Switzerland?
The decision to dissolve a company is made by a general meeting resolution in the case of an AG and by a shareholders' resolution in the case of a GmbH. The resolution is passed in the presence of a notary public who issues a public deed. The deletion of the company is entered in the commercial register and the company name is supplemented with the addition "in liquidation".
The partners shall appoint a liquidator who shall be entrusted with the realisation of the company. The liquidator may also be appointed by a judge if a shareholder so requests for important reasons. The liquidator must contact the Swiss Official Gazette of Commerce (SOGC) to announce a debt call. The purpose of the notice is to inform all creditors of the dissolution of the company and to invite them to assert their claims within one year.
In this phase, the liquidation begins, which can sometimes take several years. The liquidator must make an inventory of the assets and draw up a balance sheet that also takes into account the claims that have been raised as a result of the debt call published in the SOGC. He must terminate the current business, fulfil the company's obligations and realise the assets.
One year after the announcement of the debt call, the liquidator may request the deletion of the company from the commercial register, provided the realisation has been completed. The one-year period may be shortened to three months if a licensed auditing expert confirms that the debts have been repaid and that no interests of third parties are endangered.
Voluntary vs. Insolvency liquidation: Which approach is right for your company?
Voluntary liquidation
Advantage – the process is controlled by the shareholders or partners of the company and can usually be quicker and cheaper than a legal liquidation. Provides an opportunity to divide the assets of the company fairly among creditors and shareholders. It can also help avoid shareholder liability.
Disadvantage – it can be difficult to identify and contact all creditors and shareholders. Liquidation can be expensive, especially if the company has many liabilities or if it is difficult to value the company's assets.
Insolvency
Advantage – can divide the assets of the company among creditors in a fair manner. Insolvency can effectively identify and manage the assets of the company. It is a good chance to restructure the company and improve its financial situation. Can avoid the liability of the shareholders.
Disadvantage – the process is controlled by the court and can be more expensive and time-consuming than a voluntary or ordinary liquidation. The shareholders or partners have less influence on the process and may be forced to pay debts.
What are the main costs of voluntary liquidation?
Legal fees: As a rule, a company needs a lawyer to conduct the liquidation process.
Notary fees: A notary may also be required for the liquidation, in particular for notarising the liquidation resolution and certifying documents.
Tax costs: In liquidation, tax returns often have to be filed to ensure that all taxes are paid.
Social security contributions: If the company had employees, social security contributions for the employees must continue to be paid during the liquidation.
What steps does a liquidator need to take to ensure a proper liquidation in Switzerland?
The liquidator has to go through several important steps in the dissolution procedure in order to ensure a proper liquidation of the company. First, the liquidator must register the dissolution resolution with the commercial register. This marks the beginning of the dissolution process and establishes the legal framework for the liquidation.
After his appointment, the liquidator has the task of drawing up a balance sheet. This balance sheet gives an overview of the financial situation of the company at the time of dissolution.
It forms the basis for all further steps and decisions during the liquidation process.
The next step for the liquidator is to complete the day-to-day business of the company. In doing so, it may be necessary to collect outstanding amounts from shareholders who have not yet paid their contributions to shares that have not been fully paid up. In the case of a limited liability company, this would be outstanding capital contributions. In parallel, the liquidator is responsible for realising the company's assets and meeting its obligations. This is done taking into account the balance sheet and the debt call. The liquidator must ensure that there is no over-indebtedness before proceeding with these measures.
Another important step in the process is the publication of a debt call in the Swiss Official Gazette of Commerce (SOGC). This is a formal notice inviting creditors to register their outstanding claims. This publication serves the purpose of transparency and enables creditors to assert their claims.
Finally, the liquidator must cooperate with the cantonal tax office. The deletion of the company from the commercial register marks the end of the liquidation process and confirms the formal termination of the company's activities.
How can we support you?
We support and advise companies and entrepreneurs in all aspects of liquidation. Together with you, we determine the most suitable solution for your business. Our most important services are:
- Finding solutions to avoid liquidation
- Sale of companies
- Execution of a debt-restructuring moratorium and negotiation with any creditors
- Conduct liquidation resolution meeting
- Notification of dissolution in the commercial register and debt call in the SOGC
- Assumption of the mandate as liquidator
- Recording of inventory and assets
- Preparation of a liquidation balance sheet
- Distribution of assets
- Calculation and reporting of any withholding tax claims
- Notification of cancellation with the tax administrations and obtaining the corresponding confirmation of cancellation
- Cancellation registration and accompaniment of social security checks
- Cancellation in the Commercial Register
Originally published 12 Dec 2023
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
