A Dutch B.V. that cannot pay wage tax or VAT must notify the Belastingdienst within two weeks of the due date, or its directors are presumed liable. Distributions are allowed only if the company can keep paying its debts. A viable company can restructure through a payment arrangement, an informal deal or a WHOA plan that binds dissenting creditors. If it is not viable, bankruptcy follows, and directors are liable for the whole deficit if management was manifestly improper; late annual accounts make that a legal presumption.
When a Dutch B.V. runs out of cash, the directors' clock starts ticking
A Dutch B.V. protects its shareholders and directors from the company's debts. That protection holds as long as the directors behave properly. When the company gets into trouble, Dutch law adds a set of duties and presumptions that can turn a company debt into a personal one.
Three rules matter most. First, if the B.V. cannot pay its wage tax or VAT, the board must notify the Belastingdienst within two weeks of the due date. Miss it, and the director is presumed liable for those taxes. Second, a dividend or other distribution that leaves the company unable to pay its debts makes the directors who approved it liable to repay the shortfall. Third, in a bankruptcy each director can be liable for the whole deficit if management was manifestly improper; missing annual accounts or poor bookkeeping establish that by law.
Dutch law also offers strong tools. A payment arrangement with the Belastingdienst, an informal deal and, since 2021, the WHOA scheme let a viable company restructure, even against some creditors' will. When nothing works, bankruptcy must be filed for honestly and in time.
For a solvent company being closed, see our guide to closing a Dutch B.V.. The Luxembourg rules are in our note on a Luxembourg company in financial difficulty.
2 weeks
To notify inability to pay wage tax or VAT.
Liquidity test
Board approval only if debts stay payable.
Since 2021
Court-confirmed plan binds dissenting creditors.
3 years
Look-back for director liability for the deficit.
Warning signs and what the board must do first
Typical signals are a lender calling in its loan, a lost key customer, VAT returns filed without payment, suppliers demanding cash on delivery and negative equity. From then on, directors must weigh the interests of creditors, not only shareholders.
Know the numbers. Prepare a 13-week cash forecast and a current balance sheet, and minute every decision with the information behind it. If a curator later reviews the file, those minutes are the directors' best evidence.
Do not make promises the company cannot keep. Under the Beklamel case law on Article 6:162 BW, a director who lets the B.V. take on new obligations knowing, or reasonably should know, that it cannot pay and that creditors have no recourse, is personally liable for the loss.
Do not pay selectively. Paying a group company, a shareholder loan or a bank debt the director guaranteed, while others go unpaid, is a frequent ground of personal liability and of avoidance by a curator.
Shareholder loans. Unlike Germany, Dutch law has no automatic subordination of shareholder loans; they rank as ordinary unsecured claims unless contractually subordinated. Repaying one shortly before bankruptcy is risky. See our note on shareholder loans.
- Cash forecast. 13 weeks, updated weekly, with tax due dates visible.
- Board minutes. Record each decision, the alternatives and the information used.
- Tax. Notify inability to pay within two weeks of each missed due date.
- Accounts. Deposit overdue annual accounts at the KvK now, even late.
- Advice. Bring in a restructuring lawyer before options close.
Law and practice: Article 6:162 BW; Hoge Raad 6 October 1989 (Beklamel) and 8 December 2006 (Ontvanger/Rhebergen) on director liability towards creditors; Article 2:9 BW (internal liability of directors).
Notification of inability to pay and payment arrangements
The notification. Under Article 36 of the Collection of State Taxes Act 1990 (Invorderingswet 1990), the board of a B.V. that cannot pay wage tax, VAT, excise duties or certain environmental and consumption taxes must notify the Belastingdienst without delay. The implementing rules set the outer limit at two weeks after the date the tax should have been paid. Social security contributions, collected with wage tax, are covered; industry pension fund contributions need a separate notification to the fund. Corporate income tax is not covered.
The notification is made in writing, preferably on the Belastingdienst form, with reasons. It neither replaces returns nor reduces the debt. It can cover later periods while the inability continues, but new problems after payments resume need a new one.
| Situation | Consequence for each director |
|---|---|
| Valid notification on time | Belastingdienst must prove that manifestly improper management in the three years before caused the non-payment |
| No notification, or late or incomplete | Improper management and the causal link are presumed; the director can rebut only by proving the failure to notify is not attributable to him or her |
| Director appointed later | Liable for debts that became due after the appointment; former directors may remain liable |
| Several directors | Each is jointly and severally liable for the full amount |
Payment arrangements. The Belastingdienst can grant a payment arrangement (betalingsregeling) of up to 12 months, longer only in special circumstances. The form asks for two years of annual accounts, interim figures, a 12-month liquidity forecast and a two-year forecast; security may be requested. The notification remains a separate duty.
A Rotterdam trading B.V. owes EUR 110,000 of VAT for the second quarter of 2026, due on 31 July, and EUR 70,000 of wage tax for June and July, due on 31 July and 31 August. It pays nothing and notifies nothing, hoping a large customer will pay in September. It does not, and the B.V. is declared bankrupt in November. The Belastingdienst holds the sole director personally liable for EUR 180,000 plus interest and costs. Because no notification was made by 14 August and 14 September, improper management is presumed, and blaming the customer's default does not help. A timely notification would have put the burden of proof on the Belastingdienst.
Law and practice: Invorderingswet 1990, Article 36 paragraphs 2 to 4; Uitvoeringsbesluit Invorderingswet 1990, Articles 7 to 9; Leidraad Invordering 2008, Article 36. Belastingdienst, 'Melding betalingsonmacht' and 'Verzoek betalingsregeling ondernemers' (form OV 1352).
The distribution test under Article 2:216 BW
Since the Flex B.V. reform of 2012, a B.V. may distribute profits and reserves to shareholders only if two tests are met. The balance test requires that equity exceed the reserves the law or the articles require to be maintained; there is no minimum capital any more. The distribution test (uitkeringstest) requires board approval, and the board must refuse if it knows, or should reasonably foresee, that after the distribution the company will not be able to continue paying its debts as they fall due.
The law sets no horizon; the parliamentary history refers to roughly a year ahead. The test covers dividends, buybacks, capital repayments and hidden distributions to shareholders.
| Who | When liable | How much |
|---|---|---|
| Directors who approved | Company cannot pay its debts after the distribution, and they knew or should have foreseen it | Jointly and severally the shortfall, up to the amount distributed, plus statutory interest from the distribution date |
| Director who proves no fault | Not liable | Must show the approval was not attributable to him or her |
| Shareholder who received it | Knew or should have foreseen the inability to pay | Up to the amount received, plus statutory interest |
| Shareholder in good faith | Not liable under 2:216 | Curator may still use other grounds |
In bankruptcy the curator brings the claim. Directors who approved without a cash forecast have little defence. In a holding company, guarantees for subsidiaries count, not only the holding's own balance sheet.
In March 2026 a holding B.V. with EUR 900,000 of free reserves pays a EUR 600,000 dividend to its two shareholder-directors. The balance test is met. But the holding guarantees a EUR 2.5 million bank loan of its subsidiary, whose forecasts already showed a covenant breach. The bank calls the guarantee in September, and the holding is declared bankrupt in November. The curator claims EUR 600,000 plus statutory interest from the directors under Article 2:216(3) BW: they should have foreseen the call. As shareholders who knew the facts, they must also repay what they received.
Law and practice: Articles 2:216 and 2:207 BW (Flex B.V. Act, in force 1 October 2012); Kamerstukken II 2006/07, 31 058, No. 3 (explanatory memorandum on the distribution test).
Informal settlement and the WHOA
Informal settlement. Creditors accept a percentage of their claims, usually funded by a shareholder or investor, to avoid a bankruptcy that would pay them less. The weakness: every creditor must agree, and one hold-out can block the deal.
The WHOA. The Court Confirmation of Extrajudicial Restructuring Plans Act (Wet homologatie onderhands akkoord), in force since 1 January 2021, added Articles 369 to 387 to the Bankruptcy Act. A company that reasonably foresees it cannot continue paying its debts can offer a plan to creditors and shareholders. Once the court confirms it (homologatie), it binds all affected parties, including those who voted against.
| Feature | How it works |
|---|---|
| Procedure | Public (listed in the EU Insolvency Regulation, effects across the EU) or closed (no publication, cross-border effect not automatic) |
| Who leads | The debtor itself, or a restructuring expert appointed by the court at the request of the debtor, a creditor, shareholder or works council |
| Cooling-off period | Up to 4 months, extendable by up to 4 months; no bankruptcy petitions or enforcement during it |
| Classes | Creditors whose rights in bankruptcy would differ are placed in separate classes; secured creditors only for the secured part |
| Voting | A class approves with two thirds of the amount of claims of those who vote |
| Cram-down | Possible against a dissenting class if at least one class that would be paid in bankruptcy approves |
| Protections | Best interest test; priority rule with reasonable deviation; SME creditors at least 20% |
Homologation criteria. At a dissenting creditor's request the court refuses confirmation if that creditor would be worse off than in bankruptcy (the best interest test), or if the plan departs from the statutory ranking against a dissenting class without a reasonable ground. Small creditors, broadly suppliers with up to 50 employees, must receive at least 20% unless there are compelling reasons. Onerous contracts such as leases can be terminated through the plan if the counterparty refuses to amend them.
Practice. The annual report of the WHOA judges records 463 start declarations in 2024 and 57 cases before the courts, 51 of them closed. About 60 first homologation requests were granted and about 16 refused. In October 2024 the Supreme Court held that a plan cannot force financiers to provide new money.
A retail B.V. owes EUR 1.2 million to landlords, including future rent on six loss-making shops, and EUR 800,000 to suppliers, EUR 250,000 of it to small suppliers. The bank's secured loan is untouched. Bankruptcy would give unsecured creditors about 5%. Under a cooling-off period, the B.V. offers 30% to landlords and large suppliers and 25% to small suppliers: EUR 360,000 + EUR 165,000 + EUR 62,500 = EUR 587,500, funded by EUR 400,000 of new shareholder equity and EUR 187,500 of cash. The six leases end through the plan. Landlords and small suppliers approve; large suppliers vote against. As approving classes would be paid in bankruptcy, everyone gets more than 5% and the new equity justifies the shareholders keeping their shares, the court can confirm the plan.
Law and practice: Faillissementswet, Articles 369 to 387 (WHOA, Act of 7 October 2020, in force 1 January 2021), notably Articles 374, 376, 381 and 384; Hoge Raad 25 October 2024 (cassation in the interest of the law, Royal IHC); Rechtspraak, 'Jaarverslag rechters WHOA-pool 2024'; rechtspraak.nl, 'Wet homologatie onderhands akkoord'; KVK, 'Op de rand van faillissement? De WHOA biedt uitkomst'.
Suspension of payments, bankruptcy, the curator and employees
Suspension of payments. A B.V. can apply for a suspension of payments (surseance van betaling); the court grants it provisionally and appoints an administrator who co-signs the board's acts. Secured and preferential creditors, including the Belastingdienst, are not bound, so most suspensions end in bankruptcy. The WHOA has largely taken over its role.
Bankruptcy. The court declares a B.V. bankrupt when it has stopped paying. The company can file itself by board resolution, normally authorised by the general meeting under Article 2:246 BW. A creditor can file too, but case law requires a plurality of creditors: the petitioner's claim plus at least one supporting claim, one of them due and payable.
The curator. On the judgment the board loses control of the assets. The court appoints a curator and a supervisory judge. The curator sells the assets, often the business as a going concern (doorstart), reports publicly and investigates the directors, who must cooperate.
Actio Pauliana. Under Articles 42 to 47 of the Bankruptcy Act the curator can annul voluntary acts that prejudiced creditors if the company, and for paid transactions the counterparty, knew or should have known of the prejudice. For acts in the year before bankruptcy with group companies, directors or shareholders, that knowledge is presumed. Payments of due debts can be annulled only for collusion or knowledge of a filed petition.
Employees. The curator can dismiss with at most six weeks' notice. UWV's wage guarantee pays up to 13 weeks of wages before dismissal, up to 6 weeks of notice period and up to 12 months of holiday pay and pension premiums, capped at 150% of the maximum daily wage. Transfer-of-undertaking rules do not apply to a sale out of bankruptcy, so the buyer chooses whom to employ; the CJEU judgments in Smallsteps (C-126/16, 2017) and Heiploeg (C-237/20, 2022) set limits for pre-packs. A bill on transfers in bankruptcy (Wovof), requiring most employees to move with the business, received the Council of State's advice in December 2025 and was not in force in October 2026.
Pre-pack. The Continuity of Enterprises Act I, which would give a statutory basis to appointing a prospective curator before bankruptcy, passed the House of Representatives in 2016 but stalled in the Senate. It is not law.
Foreign-owned B.V.s. Under Regulation (EU) 2015/848, main proceedings open where the company has its centre of main interests (COMI), presumed to be the registered office unless it moved in the last three months. A B.V. run entirely from Germany or Spain may face main proceedings there. See our note on the non-resident director of a Dutch B.V..
Law and practice: Faillissementswet, Articles 1, 6, 42 to 47 (Actio Pauliana), 213 et seq. (suspension of payments); Article 2:246 BW; Regulation (EU) 2015/848, Article 3; UWV, 'Uitkering wegens betalingsonmacht'; CJEU C-126/16 Smallsteps and C-237/20 Heiploeg; Raad van State advice on the Wovof bill, published December 2025.
Article 2:248 BW, director bans and the turbo liquidation trap
Liability for the deficit. Under Article 2:248 BW each director is jointly and severally liable to the bankrupt estate for the whole deficit if the board performed its duties manifestly improperly and that was an important cause of the bankruptcy. Manifestly improper means no reasonable director would have acted that way. Only the three years before bankruptcy count, and de facto and corporate directors are covered.
The two presumptions. If the board did not keep proper books (Article 2:10 BW) or did not deposit the annual accounts at the KvK on time (Article 2:394 BW), improper management is established by law; unimportant omissions are disregarded. It is also presumed to be an important cause of the bankruptcy, and the director must prove other causes, such as a lost market. Our Dutch B.V. annual compliance calendar and note on annual accounts in the Netherlands set out the deadlines.
| Ground | Who claims | Exposure |
|---|---|---|
| Article 2:248 BW, manifestly improper management | Curator | Whole bankruptcy deficit, court may reduce |
| Article 2:216 BW, distribution test | Curator or company | Shortfall up to the distribution, plus interest |
| Article 36 Invorderingswet | Belastingdienst | Unpaid wage tax, VAT and contributions |
| Article 6:162 BW, Beklamel or selective payment | Individual creditor | That creditor's loss |
| Civil director ban | Curator or Public Prosecutor | Up to five years, registered at the KvK |
Director bans. Since 1 July 2016 a court can, at the request of the curator or the Public Prosecutor, impose a civil director ban of up to five years. Grounds include 2:248 liability, two earlier bankruptcies with personal blame, a tax fine for intent or gross negligence, deliberately prejudicing creditors and failing to cooperate with the curator. The ban is entered in the trade register; criminal courts can impose one for bankruptcy fraud.
Turbo liquidation. A B.V. without any assets can be dissolved at once, without a liquidator. Creditors keep their claims, can have the liquidation reopened if assets appear and can pursue directors on other grounds. A company with assets and unpayable debts must go through bankruptcy. Our guide to closing a Dutch B.V. sets out the conditions.
Law and practice: Articles 2:10, 2:11, 2:19, 2:23c, 2:248 and 2:394 BW; Faillissementswet, Article 106a et seq. (Act on the civil director ban, in force 1 July 2016); Act revising the criminalisation of bankruptcy fraud (in force 1 July 2016).
A practical timeline, then check your duties
A B.V. heading into difficulty has weeks, not months, to act. A typical sequence:
- Week 0First missed payment or covenant breach: build a 13-week cash forecast, minute the board's assessment, stop distributions and insider repayments.
- Within 2 weeks of a tax due dateNotify inability to pay to the Belastingdienst and, if relevant, the pension fund; request a payment arrangement.
- Weeks 2 to 6Deposit any overdue annual accounts; approach main creditors and the bank; test an informal settlement.
- Weeks 4 to 10If hold-outs block a deal, start a WHOA, with a cooling-off period if creditors are attaching.
- If not viableFile for bankruptcy by board resolution with shareholder authority; cooperate fully with the curator.
The checker below applies the rules in this note to seven answers. It is a first orientation, not legal advice on your file.
Dutch B.V. in difficulty: duties, route and liability flags
Answer seven questions about the company. You get the duties that apply now, the route that usually fits, the director liability warnings to clear first and the next steps.
Notify inability to pay wage tax or VAT, or the director is presumed liable.
No distribution if the B.V. cannot keep paying its debts.
Late filing at the KvK triggers the 2:248 presumption.
Restructure a viable business against hold-out creditors.
Dutch B.V. in difficulty: frequent questions
When must a Dutch B.V. notify the Belastingdienst that it cannot pay?
No later than two weeks after the due date of the wage tax, VAT or other covered tax, in writing and with reasons. Corporate income tax is not covered.
Does a timely notification protect the director completely?
No. It shifts the burden of proof: the Belastingdienst must then prove manifestly improper management. Without a valid notification, that is presumed, and the director can escape only by showing the failure to notify was not his or her fault.
Can a small B.V. use the WHOA?
Yes. The WHOA is open to companies of any size. Small creditors must normally be offered at least 20% of their claim. Advisory costs are the main barrier for very small companies.
Who can file for bankruptcy of a Dutch B.V.?
The company itself, by board resolution with the general meeting's authority, or creditors who show that the company has stopped paying, which in practice means at least two creditors. The Public Prosecutor can also file in the public interest.
Can I simply turbo-liquidate a B.V. that has debts?
Only if the company has no assets at all. Creditors keep their claims, and directors can still be pursued if the company was emptied before. With assets, bankruptcy or an ordinary liquidation is required.