Personally pursued as a company director: what should you do?

1. Check the capacity in which you are being pursued

Record the legal entity’s exact name and the period during which you were a director. Check whether you held office directly or through another company. Keep your roles as shareholder, employee and director separate. Owning shares alone does not explain why somebody is seeking recourse against your personal assets; the capacity identified in the claim needs its own assessment.

Also establish who is making the claim. The company itself, a commercial creditor, an insolvency trustee and a tax collector may rely on different legal grounds. List the alleged loss and amount claimed separately. A letter addressed to your BV is not automatically a personal liability notice to you. Read both the addressee and the substance before deciding how to respond.

2. Identify the alleged legal basis

Ondernemersplein distinguishes internal liability towards the legal entity from external liability towards third parties. Internal liability involves a serious personal reproach against the director. An external claim requires assessment of the particular basis asserted. An unpaid invoice alone does not establish every condition needed to make a director personally liable, so the allegation must not be treated as a proven outcome.

Ask your lawyer which specific act or omission is alleged. Does it concern entering into an obligation, removing assets, record-keeping or a decision? Do not make a general admission before the event and alleged loss are clear. A focused request for supporting information differs from already rejecting the entire claim on its merits. Keep those purposes separate in your correspondence.

3. Preserve what you knew and decided at the time

Assessing a management decision requires more than looking at the eventual financial result. Collect the information available when the decision was made: forecasts, quotations, warnings, board records and advice. Explain which uncertainties were known and which alternatives were discussed. Keep messages in which you objected or requested additional information, as well as the records supporting the decision itself.

Use a timeline with references to original documents. Do not retrospectively amend old minutes as though new wording had existed at the time. A later explanation can be recorded honestly as a later explanation. Discuss missing accounting records with your lawyer; a disorganised file makes it harder to assess both the alleged facts and your actual decisions.

4. Separate a personal guarantee from director liability

If you signed personally for financing, a creditor may rely on that agreement. This raises a different question from alleged wrongdoing in your management role. Bring financing contracts, guarantees and surety agreements in full, even if you thought you were signing only on the company’s behalf. The label on a signature page may not reveal the whole arrangement.

Check with your adviser who the contracting parties are, in which capacity you signed and which conditions apply to a demand. List amendments and additional promises. A signature page without the accompanying terms usually gives insufficient insight into the complete agreement. Do not assume that defeating one alleged basis will automatically dispose of a separate contractual guarantee claim.

5. Treat tax payment difficulties as a separate urgent issue

The tax regime concerns specified taxes of a legal entity subject to Dutch corporate income tax, including payroll taxes and VAT; it does not apply to every organisation or tax. According to the Belastingdienst, for taxes paid on a return the inability-to-pay notification must be sent within two weeks after payment should have been made. An additional assessment has a separate two-week period after its payment deadline, only for the additional amount exceeding the tax due on the return. That extra amount must not have arisen through intent or gross negligence by the business. Have applicability and the precise final date established immediately.

A notification of inability to pay is not a request for deferment or remission. Merely calling about a payment arrangement does not replace notification. Where membership of an industry pension fund is compulsory, inability to pay must also be reported to that fund. Collect returns, assessments, the form used, dispatch records and replies. Also check whether the notification is complete: meeting the deadline alone is insufficient. A liability decision or collection document received requires a separate check of response or objection deadlines. Do not wait for payment-plan discussions or assume that missing notification automatically proves every personal claim.

If the company also has an acknowledged tax debt requiring an arrangement, review a payment plan for that tax debt. A plan does not replace a notification of inability to pay or determine your personal liability.

6. Assess insolvency and insurance separately

In insolvency, the trustee may investigate management, accounting records and transactions. A related claim needs a different assessment from an ordinary supplier’s demand for payment. Preserve annual-account records, bookkeeping and relevant transactions. Record clearly what information is requested and by which deadline; providing information and admitting personal liability are not automatically the same thing.

Check whether directors’ liability insurance exists and how a circumstance or claim must be reported. Do not assume every allegation or cost is covered. Discuss who chooses the lawyer, who is the client and what insurer consent is required. Notifying the insurer does not replace your response to a formal court document or suspend an external deadline by itself.

7. Fictional example: a supplier pursues the director

Suppose a BV orders materials and subsequently loses an important customer. It cannot pay the supplier. The supplier then sends a letter to the director personally. The unpaid invoice alone does not give a complete picture of the alleged personal responsibility. The timing and substance of the alleged conduct still need to be understood.

The director collects the order, financial forecast, later events and precise notice of liability. A lawyer can then assess the allegation and identify missing information. If a personal guarantee also exists, that requires separate examination. This fictional example illustrates preparation; it is not a real client case and does not predict the result.

8. Checklist for your first consultation

State the allegation and identify the document requiring a response. Distinguish an informal threat from a formal decision or summons already received. Ask for an initial assessment of the legal basis and urgency before agreeing on negotiations or proceedings.

• Complete personal liability notice, attachments and date received.
• Legal entity details, management structure and your period in office.
• Relevant decisions, financial information and original correspondence.
• Financing agreements, personal guarantees and any insurance policy.
• Tax notifications, trustee requests and formal documents with deadlines.