Debtor information duty in insolvency: scope and refusal

Section 99 IO requires the debtor to provide the insolvency administrator with all explanations necessary for the administration. The concrete information need therefore matters. The duty makes the financial position, ongoing business and prior decisions traceable.

An answer may begin orally, but important facts should be supported by records, data or a written summary. The debtor should therefore explain the context of the information, rather than answer isolated questions without a usable connection.

The central records are those that make management and the financial position traceable. They may include accounting, bank and cash records, tax documents, open items, contracts, orders, outgoing invoices and payment records. For a company, resolutions, powers of attorney and communications by authorised representatives may also matter.

Information about assets, security, retention of title, pending disputes, insurance and ongoing obligations may also be necessary for the administration. The decisive point is the connection with the business and the proceedings. A general list cannot replace a case-specific review.

A useful response identifies the period, transaction, people involved and supporting records. If a document has already been provided, the response should refer to it. If it is unavailable, the response should say so, explain why and identify the next search or procurement step.

Uncertain recollections should be identified as uncertain. Assumptions should not appear as established facts. A list of answered questions, records to follow and points that require a third party or further research is particularly helpful.

Section 99 IO requires explanations necessary for management. It does not create an unlimited duty to disclose every conceivable private detail or answer an unrelated question. Whether information is necessary depends on its connection with administration, the financial position and the issues that remain open.

Anyone who considers a request too broad should identify the disputed part and explain the missing connection. A reasoned request to narrow the question is different from complete silence. If information concerns third parties or especially protected data, the form of a lawful, proceedings-related transmission must also be considered.

One missing record does not automatically amount to persistent refusal. The administrator should record the information requested, its purpose, the period and the required form of response. The debtor should respond objectively, provide available records and explain missing information in a traceable way.

Section 101 IO provides that the insolvency court may order the debtor to be brought before it by force if summonses are ignored. It may also detain the debtor if the duty described in section 99 IO is persistently and without sufficient reason not fulfilled. The provision states that detention imposed after the opening of proceedings may not exceed six months in total. Whether the requirements are met depends on the conduct and procedural position in the individual case.

The information duty under section 99 IO must be distinguished from the specific rules on the statement of assets and balance sheet. Section 100 IO addresses, among other matters, the prompt submission of a detailed asset statement, review of a submitted balance sheet and a declaration before the insolvency court that the information is correct and complete.

If both information streams are requested, they should be prepared and labelled separately. The asset statement has its own requirements. The article Asset statement in insolvency provides a detailed explanation of assets, liabilities and security.