Support claim based on (old) financial statements: is it possible?

When a business associate leaves your invoices unpaid, there are several ways to get your money collect. In addition to conducting a proceedings on the merits or laying batter, it can filing for bankruptcy of the debtor are an extremely effective collection tool. Indeed, the pressure of an impending bankruptcy hearing often causes a debtor to make payment after all.

Yet many creditors encounter a legal barrier: the so-called ‘plurality requirement. In this blog, we explain how a recent ruling by the District Court of Amsterdam (ECLI:NL:RBAMS:2026:3308) shows that your debtor's financial statements can serve as an aid to this problem.

Lawyer explains what the plurality requirement is

In order for a person to declare bankruptcy, the law (Article 6 paragraph 3 Bankruptcy Act) summarily show that the debtor is in the condition of having ceased to pay. A condition for this is that there must be multiple creditors. We call this the plurality requirement.

In addition to your own claim, therefore, there must be at least one other claim, the so-called ‘support claim. Proving such a support claim is often difficult in practice because, as an outsider, you usually do not have access to your debtor's records.

Financial statements prove existence of support claim

The Amsterdam District Court ruling mentioned above shows that the solution is sometimes closer than you think. Indeed, the annual accounts published in the trade register of the Chamber of Commerce, can under circumstances prove the existence of support claims. In this case, the Tax Authorities filed for the bankruptcy of a BV. Although an earlier support claim had since been paid, the Tax Authority pointed to the company's most recently filed financial statements. Those documents showed that the BV still had millions of euros in debts to third parties and affiliates at the end of 2022.

The debtor tried to defend itself by submitting new financial statements for 2023 in which all of these debts were suddenly at zero. The explanation was that the debts had been paid, set off or even expired by an unusually short one-year statute of limitations.

Court uses old financial statements as evidence for support claim

The court did not go along with this. Thus, the court ruled in r.o. 3.3:

“[defendant's] explanation for the non-existence of these debts and claims - that the debts and/or claims were partly paid, partly set off and partly (in the amount of 7 million) released by prescription - is insufficiently substantiated to assume that none of the debts are present anymore. Especially striking is the unusual and different one-year limitation period of the intercompany current account claims. It would have been up to [defendant] to substantiate this arrangement with documents. Nor can the assertion that the long-term loans were satisfied be deduced from the documents (other than that they were set to zero on paper). Without further substantiation, which is lacking, [defendant] has not made sufficiently plausible that there is in fact payment, release and prescription of all claims existing on December 31, 2022 to third parties or other entities in the group of which the Regency is apparently part.”

Thus, in short, the court ruled that:

• it was in the debtor's way to make the sudden disappearance of millions in debt met concrete evidence substantiate;
• a bare assertion that debts are time-barred or satisfied, without further substantiation, is insufficient to rebut the information contained in the financial statements;
• the financial statements thereby provided sufficient evidence that there was still (summarily) plurality.

Moreover, because the limited liability company was no longer generating income, bankruptcy was declared.

Support claim need not always be specifically designated: sometimes financial statements suffice

In doing so, the Amsterdam court continues the line taken by the Rotterdam court in a June 21, 2022 ruling (ECLI:NL:RBROT:2022:5074), which held that a long-term debt on the financial statements can qualify as a support claim:

“Furthermore, there is sufficient prima facie evidence of the existence of a support claim, since the defendant has a debt (uncontested by the applicant) by virtue of a credit facility with the ABN AMRO bank with an overdraft of currently approximately €34,000 and, in addition, the existence of a long-term debt is evident from the annual accounts. At the hearing, the defendant sufficed with the assertion that this claim is not known to it, which, since it is included in the applicant's financial statements, is an insufficiently substantiated dispute.”

and:

“As to the condition of having ceased to pay, the following is considered. The defendant has several large debts, namely a substantial long-term debt evidenced by the financial statements and the debt to the applicant. “

Against this, however, is a ruling by the District Court of The Hague, which on Aug. 20, 2024 (ECLI:NL:RBDHA:2024:13235). Which (based on the facts of that case) came to the following judgment:

“An entry in a financial statement of debts does not, in the court's view, provide compelling evidence of the existence of a claim (ECLI:NL:RBAMS:2018:6634).”

However, that opinion must be seen in the context of all the facts discussed in that case. Relevant was, among other things, that although the financial statements contained debts, there were at the same time indications that there were agreements about them indicating that the items included in the financial statements were incorrect. Under those circumstances, the mention of a debt in the financial statements was insufficient to assume the existence of a support claim:

“The court assumes that [company 2] paid part of the claim to [company 1] shortly before the hearing since this was not disputed by [company 1]. [company 2] has disputed [company 1]”s remaining claim with reasons. The financial statements of 2022 and 2023 show that there are debts from [company 2] to [company 1] and also to other shareholders. However, there are also indications that other agreements were made between the parties in 2018. For example, an email submitted by [company 2] dated September 26, 2018 from [name 4] (one of the directors of [company 2] ) shows that it was agreed that only VAT would be paid by [company 2]. The remaining invoice amount from [company 1] was not paid but was considered to be [company 1]'s in-kind contribution to [company 2] to arrive at 10 % shareholding. In an email of the same date, [name 5] , also on behalf of [name 6] (director of [company 1] ) agrees to this. This substantiates [company 2]'s contention that there is no receivable from [company 1] but share capital."

Has anything changed in bankruptcy practice now?

The Amsterdam court's ruling is good news for creditors. It lowers the bar for presenting a support claim somewhat. However, other case law shows that financial statements are not always sufficient on their own. But if the debtor does not come up with a good story, listing debts on a financial statement may, on the other hand, make it sufficient.