• Mehr als 3 Millionen Wörter Inhalt
  • |
  • info@itmedialaw.com
  • |
  • Tel: 03322 5078053
Rechtsanwalt Marian Härtel - ITMediaLaw

No products in the cart.

  • en English
  • de Deutsch
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
Kurzberatung
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
Rechtsanwalt Marian Härtel - ITMediaLaw

Covert non-cash formation: an underestimated risk for startups

13. August 2024
in Uncategorized
Reading Time: 3 mins read
0 0
A A
0
covert non cash formation an underestimated risk for startups
Key Facts
  • Startups often face legal pitfalls, notably hidden non-cash incorporation.
  • Hidden non-cash formation misrepresents assets as cash, leading to legal complications.
  • Legal risks increase when startups transition from a GbR to a GmbH.
  • Insolvency issues can arise from hidden contributions, risking managing directors' liability.
  • Legal consequences under § 19 IV GmbHG can affect monetary obligation fulfillment.
  • Expert legal advice is crucial to prevent risks and ensure compliance.
  • Establishing a strong legal foundation is essential for long-term startup success.

As a lawyer, I repeatedly encounter cases in which startups unexpectedly stumble due to legal pitfalls. One such stumbling block that deserves special attention is “hidden non-cash incorporation.” This problem occurs particularly in the start-up phase, when the entrepreneurial focus is primarily on product development and market entry.

Content Hide
1. What is a hidden non-cash foundation?
2. Why is this problematic for startups?
3. Legal consequences and § 19 IV GmbHG
4. Prevention and recommendations for action
5. Conclusion
5.1. Author: Marian Härtel

What is a hidden non-cash foundation?

Concealed non-cash formation manifests itself when assets such as software or goods are contributed to a GmbH disguised as cash contributions. From a legal point of view, these are contributions in kind, but they are not declared accordingly. A common case is that founders who previously worked together in a GbR, without a strong sense of guilt, sell assets to the newly formed GmbH. However, this action, often committed out of ignorance or underestimation of the legal implications, can have far-reaching consequences. This is because the legal framework conditions that distinguish a GmbH from a GbR are not merely formal in nature. They also imply stricter capital raising and maintenance. In this context, hidden non-cash contributions may lead to liability of the shareholders, especially if the assets contributed do not have the declared value. Therefore, it is of utmost importance that founders are aware of the importance of a correct declaration of contributions in kind and respect the legal intricacies of setting up a company.

Why is this problematic for startups?

For startups that begin as a GbR and later become a GmbH (limited liability company), a hidden non-cash formation entails considerable legal risks. A discrepancy arises between what legally appears to be a cash contribution and what is economically to be regarded as a contribution in kind. The qualification of these transactions as a hidden contribution in kind leads to the fact that, pursuant to Sec. 19 (4) Sentence 1 GmbHG, the cash contribution obligation is deemed not to have been fulfilled and can be claimed again by the GmbH. However, under certain conditions, the value of the asset can be offset against the GmbH’s contribution claim, thus ruling out a double claim on the cash contribution obligation

1

.

Under insolvency law, a hidden non-cash formation may lead to over-indebtedness, which may not be recognized or declared in a timely manner, which may result in liability of the managing directors (§ 15a InsO).

In terms of criminal law, the concealed formation in kind may result in personal civil liability of the managing director vis-à-vis the GmbH pursuant to Section 9a GmbHG and criminal liability of the managing director pursuant to Section 82 (1) No. 1 GmbHG, with the range of punishment extending from a fine to a prison sentence of up to three years.

Legal consequences and § 19 IV GmbHG

The legal consequences of a concealed non-cash formation can be serious. According to § 19 IV GmbHG, the obligation to make a contribution remains in money. Agreements on the hidden contribution in kind and the corresponding legal acts are not invalid. The value of the assets is credited against the shareholder’s monetary contribution obligation, but only after the company has been registered in the Commercial Register. It should be noted, however, that contracts governing any subsequent transfer are not trivial. While the GmbH and the shareholders may have problems later, the GbR could have tax problems if these tangible assets are sold too favorably to the GmbH. Such transactions must be carefully reviewed to ensure that they comply with tax law requirements and do not create unexpected tax burdens.

Prevention and recommendations for action

Knowledge of hidden non-cash formation and the correct application of § 19 IV GmbHG are essential in order to avoid legal pitfalls. Expert legal advice is recommended to identify and minimize risks. All transfers of assets should be transparent and in compliance with the law, especially when registering in the Commercial Register.

Conclusion

The founding and development of a startup entails opportunities as well as legal challenges. Legal prudence and diligence are just as important as an innovative business idea. Only with a solid legal foundation can unexpected challenges be avoided and long-term success ensured.

Marian Härtel
Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.

Weitere spannende Blogposts

Bundestag continues to support esports

Bundestag continues to support esports
7. November 2022

While sports federations reject esports, politicians continue to put their money where their mouth is and continue to advocate esports....

Read moreDetails

Facebook may block accounts without clear names

Facebook/Instagram: Court deliveries also permitted in German!
7. November 2022

The Munich Higher Regional Court ruled that Facebook was entitled to prohibit the use of pseudonyms and justified this primarily...

Read moreDetails

Hamburg Higher Regional Court slaps fictitious costs “around the ears” of debt collection industry

Hamburg Higher Regional Court slaps fictitious costs “around the ears” of debt collection industry
19. June 2023

Artificial collection costs: vzbv successfully sues EOS Investment GmbH EOS Investment GmbH, a debt collection company that collects outstanding debts...

Read moreDetails

Protection of minors in online games: age ratings, chat functions and parental control

Protection of minors in online games: age ratings, chat functions and parental control
27. April 2025

: An important decision is currently attracting attention in games law: in April 2025, the youth ministries of the German...

Read moreDetails

Alternative financing models in Germany and other countries – admissibility and design

Alternative financing models in Germany and other countries – admissibility and design
30. March 2025

Companies, founders and start-ups are increasingly looking for innovative financing methods beyond traditional bank loans or venture capital. Alternative financing...

Read moreDetails

LG Karlsruhe: Tagging photos without advertising label

Legal form as an influencer? A few hints!
21. March 2019

Influencer's decision-making around tagging brands on Instagram continues. And as has often been said here on the blog, the warning...

Read moreDetails

Domain seizure: BGH obliges DENIC

7. November 2022

While domains were actually just an address at the beginning of the Internet hype, they are increasingly becoming an economic...

Read moreDetails

The key to success in the tech world: an IT-savvy lawyer with corporate experience

shutterstock 1889907112 scaled
16. February 2024

Introduction: The rapid development in the technology sector is constantly presenting companies with new challenges and opportunities. As a lawyer...

Read moreDetails

Working abroad in the EU? Do not forget A1 certificate!

Working abroad in the EU? Do not forget A1 certificate!
7. November 2022

Today I would like to briefly remind you of something that probably 99.9% of self-employed people and employers have not...

Read moreDetails
Contractual regulations for no-code/low-code software development
Other

Contractual regulations for no-code/low-code software development

21. May 2025

No-code and low-code platforms enable rapid software development without extensive manual programming. Applications are increasingly being developed on the basis...

Read moreDetails
Erotic content on OnlyFans: Copyright and personality rights protection for creators

Erotic content on OnlyFans: Copyright and personality rights protection for creators

20. May 2025
Goodbye hustle culture? Startup life between 24/7 grind and work-life balance

Goodbye hustle culture? Startup life between 24/7 grind and work-life balance

19. May 2025
Startup buzzwords 2025: Bullshit bingo in marketing German Introduction: Bullshit bingo in marketing German

Startup buzzwords 2025: Bullshit bingo in marketing German Introduction: Bullshit bingo in marketing German

18. May 2025
From the metaverse boom to AI euphoria – a tech lawyer in the hype cycle

From the metaverse boom to AI euphoria – a tech lawyer in the hype cycle

17. May 2025

Podcastfolge

da884f9e2769f2f96d6b74255be62c27

The role of the IT lawyer

5. September 2024

In this exciting podcast episode, we delve into the fascinating world of IT start-ups and find out why an experienced...

Read moreDetails
c9c5d7fd380061a8018074c2ca5a81bf

Startups and innovation in Germany – challenges and opportunities

26. September 2024
7c0b449a651fe0b81e5eec2e23515012 2

Copyright in the digital age

15. January 2025
4f3597d5481e0f38e37bf80eaad208c7

The IT Media Law Podcast. Episode No. 1: What is this actually about?

26. August 2024
9e9bbb286e0d24cb5ca04eccc9b0c902

Legal challenges of innovative business models

1. October 2024

Video

My transparent billing

My transparent billing

10. February 2025

In this video, I talk a bit about transparent billing and how I communicate what it costs to work with...

Read moreDetails
Fascination between law and technology

Fascination between law and technology

10. February 2025
My two biggest challenges are?

My two biggest challenges are?

10. February 2025
What really makes me happy

What really makes me happy

10. February 2025
What I love about my job!

What I love about my job!

10. February 2025
  • Privacy policy
  • Imprint
  • Contact
  • About lawyer Marian Härtel
Marian Härtel, Rathenaustr. 58a, 14612 Falkensee, info@itmedialaw.com

Marian Härtel - Rechtsanwalt für IT-Recht, Medienrecht und Startups, mit einem Fokus auf innovative Geschäftsmodelle, Games, KI und Finanzierungsberatung.

Welcome Back!

Login to your account below

Forgotten Password? Sign Up

Create New Account!

Fill the forms below to register

All fields are required. Log In

Retrieve your password

Please enter your username or email address to reset your password.

Log In
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
  • en English
  • de Deutsch
Kostenlose Kurzberatung