Supplementary winding-up after deletion of a private foundation: realising a newly discovered claim

Section 37(1) PSG links the end of the winding-up to the filing with the commercial register, registration of the completion and deletion of the private foundation. Only afterwards may it become clear that a further winding-up measure is required. In that situation, section 37(3) provides that the court may appoint the former foundation board or a liquidator.

The provision concerns a specific further measure. It may involve collecting a claim of the deleted foundation, reviewing and enforcing an entitlement, or realising an individual asset. The necessary step depends on the right discovered and on the remaining work required to complete the winding-up.

The court appointment creates the basis for completing that work. It does not restore every former function of the deleted private foundation. Section 37(3) therefore does not create a general restart of the foundation's organs, purpose or ongoing asset management.

An additional contribution concerns assets dedicated to an existing private foundation and accepted under its foundation deed and competent body decision. A deleted foundation no longer has ordinary ongoing administration. The starting point is therefore a completed winding-up process.

A newly discovered claim concerns the attribution of a right to the former foundation and its realisation within supplementary winding-up. The claim does not become a new contribution through the court appointment. Nor does the person who reports the claim automatically become a founder or beneficiary.

An additional contribution concerns assets transferred to an existing foundation. Supplementary winding-up starts from the former winding-up status and the rights and obligations that remain to be dealt with.

Section 37(3) PSG names two possible appointees: the former foundation board and a liquidator. The choice depends on who can handle the particular supplementary measure properly. Holding the former office therefore does not by itself guarantee an appointment.

The application should identify the deleted private foundation, the discovery and the specific right. It should include evidence of the claim, the register status, the former closing account and an explanation why the proposed person is suitable for the further winding-up.

The requested representation must be limited to the task. Someone appointed to collect one claim does not thereby receive a general power to administer the former foundation's affairs. The court order and its scope should therefore be checked before any approach to the debtor.

The claim must be attributable to the deleted private foundation. Gather the contract or other basis, invoices, performance records, bank statements, correspondence and any security. The date of discovery and the former winding-up also belong in the file.

The claim then requires a substantive review. Objections, counterclaims, limitation issues, evidentiary problems and the debtor's ability to pay may influence the choice between a demand, negotiation and court enforcement. Success and recoverability cannot be assessed in the abstract.

The file should also record expected costs, decision authority and the treatment of incoming payments. A claim is not immediately available cash merely because it was discovered after deletion.

A payment from the claim first belongs in the supplementary winding-up account. Costs of the measure and outstanding obligations of the former private foundation must be kept separate. Only once the further winding-up is organised can the remaining amount be assessed for transfer to an ultimate beneficiary or under another applicable rule.

The former deletion does not remove the need to consider creditors and known obligations. If further debts or disputes appear, the appointed person must include them in the winding-up and document the position for the court.

The rules on ultimate beneficiaries and creditor protection form part of the original winding-up context. Supplementary winding-up begins with the individual measure discovered afterwards and carries it out within the court order.

A common mistake is contacting the debtor immediately in the name of the deleted foundation without clarifying the court appointment and its scope. It is equally risky to assert a claim from an old accounting note when the contract, performance and due date are not evidenced.

Another mistake is treating discovery as proof that the claim can be collected. A claim may be disputed, time-barred, not yet due or difficult to enforce economically. The file should show these uncertainties and explain the next action.

A recovered payment must not be distributed prematurely. Costs, outstanding obligations, further winding-up measures and court documentation come first. The complete foundation deed may be decisive when identifying the recipient rule. The article interpreting the foundation deed addresses that document issue.