CORONA-SOFORTHILFE / CORONA-SOFORThilfe NRW

Withdrawal notice

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Withdrawal notice for NRW emergency aid 2020 / Corona emergency aid NRW received from the district government?

Law firm for criminal law in Kerpen, Cologne and Witten

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We will show you what you are allowed to use the grant money you received for, under what circumstances the benefits must be repaid, and at what point you have committed a criminal offense.

The deadline for applying for the Corona emergency aid NRW from the federal government ended on May 31, 2020, which has so far been paid out by the federal states. The written requests from the federal government, the district governments, whether in postal or electronic form, for proof of the proper use of state funds have already been sent and delivered in large numbers.

In principle, due to the different country-specific testing documents and the current high number of Subsidy fraud proceedingswhich the public prosecutor's office has already initiated against unauthorized recipients of the funding measures, a very great deal of uncertainty has arisen among the recipients of the funding.

Do not panic. We have already successfully defended many of these proceedings on behalf of our clients and provide you with some answers to the most frequently asked questions on this topic below.

Who has to repay the Corona Emergency Aid NRW / NRW Emergency Aid 2020?

Terms of repayment of Corona Emergency Aid NRW

In general, it must first be said that the Corona grants (Corona emergency aid, NRW emergency aid 2020), do not have to be repaid. Unless the recipient, applicant at the time, did not meet the requirements for applying for these, used these subsidies for the wrong expenses or even made false statements when applying for these.

In addition, it should be said that, in principle, no company is eligible for the use of Corona emergency aid that is already receiving benefits from the Economic Stability Fund, bridging aid, KfW special programs or KfW fast loans or was receiving them at the time of application.

Therefore, if you are affected by an exclusively Corona-related, indicated, liquidity bottleneck that threatens the economic existence of your company, you do not have to repay the subsidies received. In most federal states, the received subsidies may only be used for operating costs, however, there are exceptions such as the federal states of Badem-Würtemberg and NRW, where parts of the subsidies may even be used for living costs on the basis of a monthly lump sum.

In Badem-Würtemberg, for example, the approved lump sum is 1,180.00 euros and in NRW even 2,000.00 euros per month for use in meeting living expenses.

What happens if I don't need or use the full amount of the grant to cover my operating costs?

Overcompensation of Corona emergency aid NRW

Anyone who has received more grants, subsidies, than their incurred damage amounts to, must pay back the difference to the responsible authority. This is where the concept of overcompensation comes into play. It should be noted that overcompensation amounts to the difference between the Corona Emergency Aid NRW / NRW Emergency Aid 2020 received and the actual liquidity bottleneck. Saved costs must also be taken into account here, such as rent reductions or deferrals of current items that are to be allocated to operating costs.

We will show you how to calculate a liquidity shortage in the following.

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How to calculate the liquidity shortage?

Calculation of the liquidity shortage

A liquidity bottleneck is calculated as the difference between the ongoing income from the current business of your company, without adding the approved and received Corona Emergency Aid NRW, minus the ongoing business-related material and financial expenses. Evidence of a liquidity bottleneck is provided if, within the funding period (in the case of Corona emergency aid, this is 3 months), the sum of the actual ongoing business-related material and financial expenses is greater than the sum of the ongoing income from business operations.

How to calculate the liquidity shortage?

Calculation of the liquidity shortage

A liquidity bottleneck is calculated as the difference between the ongoing income from the current business of your company, without adding the approved and received Corona Emergency Aid NRW, minus the ongoing business-related material and financial expenses. Evidence of a liquidity bottleneck is provided if, within the funding period (in the case of Corona emergency aid, this is 3 months), the sum of the actual ongoing business-related material and financial expenses is greater than the sum of the ongoing income from business operations.

This is therefore calculated as follows:

continuing income from business operations

Continuous professional material and financial expenses
=
Liquidity bottleneck

If the amount of the negative liquidity shortage is greater than or equal to the Corona Emergency Assistance NRW you received, you are not obliged to repay the funding you received.

If the negative amount of the liquidity shortage is less than the disbursed Corona Emergency Aid NRW, the difference must be repaid proportionately to the authority responsible for it.

If there is no liquidity bottleneck at all, i.e. if your ongoing income is higher than your ongoing professional material and financial expenses, the emergency aid must of course be repaid in full to the competent authority.
Below you will find a sample calculation from Wirtschaft.NRW for illustration purposes.

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For which costs may I use the funding from Corona-Soforthilfe NRW?

Possible uses of Corona Emergency Aid NRW

  • Office expenses: for example, postage, telephony, printers (associated lease payments if any), internet, office supplies.
  • Advertising costs / marketing.
  • Maintenance, repair and upkeep costs.
  • Costs for tax, operational and legal advice.
  • Room costs / rent.
  • Cost of materials, supplies and merchandise.
  • Replacement investments, but only with a respective purchase price of up to 800.00 euros net.
  • Vehicle costs, including vehicle tax and insurance, less private use.
  • Premiums for company insurance policies, chamber dues, dues for professional associations and trade associations.
  • Corona-related capital and operating equipment costs: for example, Plexiglas screens, mask, disinfectant.
  • Scheduled repayments.
  • Lease payments, cancellation costs, reimbursed commissions, and operating prepayments (but excluding tax prepayments).
  • Operating interest on loans, credits, current account and bank charges. 
  • Fictitious entrepreneur's wage, but not in all federal states and also only on condition that no supplementary basic income support has been applied for.

For which costs am I not allowed to use the funding from Corona-Soforthilfe NRW?

Excluded uses of the Corona emergency aid NRW

  • Private insurance premiums and retirement provision
  • Depreciation
  • Benefits paid to a pension fund
  • Personnel expenses, as short-time allowance is earmarked for this use.
  • Private rental costs
  • Payments to statutory pension, health and long-term care insurance.
  • New operational investments that did not have to be purchased due to Corona-related requirements.
 
It should be noted, however, that the eligible costs may vary depending on the specifics of the federal states.

Under what criteria is the Corona Emergency Aid NRW to be repaid?

Repayment criteria of the Corona Emergency Aid NRW

The first criterion, which inevitably leads to an obligation to repay the Corona emergency aid NRW has received, is if it has been applied for, approved and therefore distributed more than once. These double or even multiple distributions must of course be repaid to the competent authority.

Furthermore, there is a repayment obligation in case of disregard of the application requirements. Namely, one of the essential application requirements for applying for Corona emergency aid is that the applying company was not in difficulty at the time of December 31, 2019, pursuant to Article 2(18) of the General Block Exemption Regulation. Many of the applicants did not consider or overlooked this criterion. The definition of a company in difficulty takes effect as soon as one of the following circumstances applies to the company according to Art. 2 (18) of the General Block Exemption Regulation and reads as follows:

  • In the case of a limited liability company, more than half of the subscribed share capital should have been lost due to accumulated losses.
  • Companies that have received restructuring aid or are subject to a restructuring plan.
  • Companies that meet the requirements of insolvency proceedings or have received rescue aid and have not yet repaid it.
  • Companies in which one shareholder has unlimited liability for the debts of the company/enterprise and, in addition, half of the reported equity has been lost through losses. 

What legal consequences should I expect if I have made false statements when applying for Corona Emergency Aid NRW / NRW Emergency Aid 2020 or have used the funding for the wrong costs?

legal consequences

In principle, a distinction must first be made here between the administrative law procedure, repayment pursuant to §48 and §49a of the Administrative Procedure Act, and the criminal law procedure, the Subsidy fraud according to §264 para. 5 StGB to distinguish.

The administrative law procedure

Reclaim of approved and received Corona emergency aid NRW according to §48 and §49a, VwVfG NRW:

The reclaiming of the granted of the Corona-Soforthilfe NRW happens as a rule, because you have either, as already described by us, used the subsidies of the Corona-Soforthilfe NRW for the wrong costs, retroactively considered within the 3 month period of validity of the emergency aid no liquidity bottleneck can show or the subsidies have not been used in full to cover your operating costs.

Nevertheless, it is strongly advised that you seek advice and representation from a lawyer with expertise in this area regarding your next actions in order to object to the recovery or to be able to handle the repayment properly without having to fear legal consequences from the administrative proceedings.

Do not make the mistake and represent yourself, do not risk to lose the proceedings in the context of this procedure in which the district government, public prosecutor's office, investigates against you by legal pitfalls.

Contact us and let yourself be represented by a law firm that has experience in these proceedings. We have already been able to decide such proceedings in favor of our clients many times.

The consequences in the event of losing such a case may result in severe fines and the consequence of being subject to prosecution pursuant to § Section 49a (3) VwVfG NRW have to pay a refund amount of 5% above prime rate p.a. according to section 247 of the German Civil Code on the full amount of the Corona emergency aid received.

The criminal procedure

Subsidy fraud with regard to the unlawful use of the Corona emergency aid NRW pursuant to Section 264 (5) of the German Criminal Code.

The accusation of the Subsidy fraud is usually issued on the basis of an accusation of false affirmation in lieu of an oath, i.e. you are accused by the public prosecutor's office of having made untruthful statements when applying for Corona Emergency Assistance NRW, deliberately, with criminal intent.

So, if you have received a notice from the public prosecutor's office about these accusations or a notice about a summons at the police department or even public prosecutor's office responsible for you, contact immediately a lawyer who has the expertise in this form of criminal proceedings, in order to be advised and represented against the accusations and legally, in the criminal proceedings threatening you.

Do not make any statement to the authorities without the advice of the lawyer. You would probably only incriminate yourself, to your disadvantage. Silence is golden in this case!

Furthermore, you need to know that if you are charged by the prosecutor's office of the Subsidy fraud If you are accused of an offense, you will also be subject to further administrative proceedings, namely proceedings for the recovery of the emergency aid you received.

Contact us and let yourself be represented by a law firm that has experience in these proceedings. We have already been able to decide such proceedings in favor of our clients many times.

The consequences in case of losing such a case can result in a prison sentence of up to 3 years, depending on the severity, as you can see from the judgment of the Berlin-Tiergarten District Court.

Example

Man convicted of fraud in Corona instant aid scheme

" 07/17/20 | 6:59 PM

It is the first verdict for fraud in the Corona emergency aid scheme in Berlin: a man collected over 20,000 euros for companies that in some cases did not even exist. The 31-year-old had already confessed at the beginning of the trial. Now he has been sentenced for it.

Because he cheated at the Corona Instant Help in Berlin, the Berlin-Tiergarten District Court has sentenced a 31-year-old man.

He was found guilty on Friday of wrongfully collecting 21,500 euros. The court imposed a suspended sentence of one year and seven months. He must also pay a fine of 2,000 euros.

The defendant had been aware of the Subsidy fraud guilty in six cases, justified the district court Tiergarten on Friday. Several times he had applied for subsidies with the investment bank Berlin (IBB) with wrong data, justified the judge. The man behaved socially harmful. However the acts had been made very easy for him.

This is the first verdict for fraud in the Corona emergency aid scheme in Berlin. It is not yet final, the parties to the proceedings can appeal against the verdict within one week.

Confession at the beginning of the trial
The defendant had already admitted at the beginning of the trial two weeks ago that he had made up several companies and defrauded grants. He had applied for 77,500 euros. As court spokesman Raphael Neef said after the announcement of the verdict, in five cases the companies for which the defendant had applied for subsidies did not exist. In one case, false employee figures had been given.

Following a suspicious activity report from his bank, the public prosecutor's office investigated, and the defendant was then remanded in custody at the end of April. The man paid back the money.

At the beginning of the trial, the 31-year-old had explained that after several of his acquaintances suddenly had "pockets full of money", he had decided to "join in the rally". His defense lawyer explained that sums had been paid out without checks - "it was child's play and word had got around". In the digitally submitted applications, only a few data had been requested.

At the request of the prosecutor, the court provisionally closed one case of the original seven cases in the indictment.

Source: rbb24.de"

What costs should I expect if I am represented by a lawyer?

Costs of defense by a lawyer for criminal law

Of course, the legal representation by a lawyer costs you money, that is probably clear, but far higher costs come to you if you are not represented. In the worst case, this will cost you not only money, but also your freedom!

A defense in the pre-trial proceedings, which ends with a discontinuation of the proceedings, costs accused persons approx. 650,- EUR. However, if it is not possible to bring about a discontinuation in the course of the proceedings, but the public prosecutor's office brings charges against you, the accused must rely on
Set approx. 1200,- EUR total cost.

If an acquittal is effected in such a case, the costs for this are even borne by the state treasury. However, only in the case of an acquittal!

Do you need legal assistance from a criminal law attorney?

Then contact us

+49 (0) 2273 - 40 68 504

info@kanzlei-baumfalk.de

Law firm for criminal law in Kerpen, Cologne and Witten

Lawyer for - Labor Law | Criminal Law | IT Law | Data Protection