This is possible, but the driver must act with caution. Before a dividend can be paid out in the BV, two distribution tests must be carried out: the balance sheet test and the liquidity test.
balance test
The balance sheet test is based on an analysis of the company's net assets. The company's net assets may not be negative or become negative as a result of the dividend payment. For this test, the most recently approved annual accounts or a more recent statement of assets and liabilities can be taken into account.
liquidity test
Furthermore, a dividend can only be paid if the board of the company has determined that, according to the developments that can reasonably be expected, after the distribution the company will continue to be able to pay its debts as they become due and payable over a period of at least twelve months. from the date of distribution.
The coronavirus has not made this analysis any easier for the governing body. After all, the consequences of the virus and the associated security measures have a huge impact on the results of companies. Just think of the mandatory closure of stores with the resulting loss of turnover, the uncertainty about the payment capacity of trading partners and customers, the repeated loss of staff due to the mandatory quarantine periods, and so on. This could lead to short-term liquidity losses for some – even particularly solvent – companies. If the company cannot obtain payment deferral from its creditors for this, a dividend payment is therefore out of the question.
It is therefore better to act with extra caution in these times. After all, wrongful distributions can be reclaimed from the receiving shareholders, regardless of their good or bad faith. The directors who have made a distribution in violation of the liquidity test are jointly and severally liable vis-à-vis the company and third parties for all damage resulting therefrom if it is established that, when making the decision, they knew or, in view of the circumstances, should have known that the company as a result of the distribution would apparently no longer be able to pay its debts as they become due and payable in the period of twelve months after the distribution. Even if the company therefore only experiences temporary liquidity shortages, no dividend can be paid in that case. After all, now that the corona crisis has been going on for a while, it will be difficult to defend in our opinion that a director did not know or should have known that the payable debts over the next twelve months could not be paid.
In short: driver, be vigilant.
