In a decision issued in December 2009 (31 Wx 142/09), the Higher Court Munich (OLG München) ruled that a non-EU national does not need to have an unlimited entry permit for Germany to hold the position of a managing director of a German GmbH. It previously had been argued in legal literature that an unlimited entry permit was necessary for any person to qualify as managing director of a GmbH. The Higher Court Munich clarified that since the modernization of Germany’s Act on Limited Liability Companies (MoMiG) in late 2008, a managing director may administer a GmbH even from abroad, so that an unlimited entry permit is no longer required. It should be noted, however, that for tax purposes, the place of management of a legal entity is decisive for its tax residence. Thus, having a managing director of a German GmbH with a permanent or regular presence outside of Germany may trigger adverse tax consequences.
If you have any questions, please contact Dr. Tim Luthra of Raupach & Wollert Elmendorff Rechtsanwaltsgesellschaft mbH.
