Evidence sufficient assets
Set out the assets, their possible realisation and the expected initial costs under section 71 IO. One asset alone does not answer the issue without evidence of its realisability.
Insolvency proceedings
Insolvency opening without assets: cost advance under section 71a IO
Opening insolvency proceedings despite insufficient assets: review the section 71a IO cost advance, court order, deadline and consequences for the application.
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BRANDAUER Rechtsanwälte
Insolvency law, Salzburg and throughout Austria
We review the procedural status, contracts, payment records and security, then explain which legal question needs to be addressed next.
19 September 2026, Mag. Bernhard Brandauer, Rechtsanwalt
If the debtor is unlikely to have enough assets to cover the costs of insolvency proceedings, the court may make opening conditional on a cost advance by the applicant. Section 71a IO connects opening despite insufficient assets with a court order and a defined time limit.
Section 71 IO sets the starting point: the debtor’s assets must at least cover the initial costs. They do not have to be immediately realisable or realisable without effort. A cost advance under section 71a IO is therefore a separate route where those assets are unlikely to be sufficient.
The review focuses on the court order, the deadline, the amount requested and the evidence concerning the assets. This article separates the opening issue from general creditor filing and from claims arising after proceedings open.
Classify the opening issue
Three routes where assets do not cover costs
The legal consequence depends on the assets, the applicant and the court’s order.
| Situation | Legal basis | What matters | Risk if evidence is missing |
|---|---|---|---|
| Assets are sufficient Assets cover the initial costs | Section 71 IO | Set out assets, realisability with reasonable effort and initial costs together. | The asset information remains incomplete or contradictory. |
| Applicant pays an advance Assets are unlikely to cover the costs | Section 71a IO | Review the court order, amount and deadline for the cost advance. | If payment is late, the application is dismissed for lack of sufficient assets. |
| Legal person Corporate representatives secure the costs | Section 72 IO | Evidence of the representatives’ advance or established sufficient assets is required. | The creditor application is only dismissed after these options are examined. |
The table reflects the statutory points of reference. The actual order and complete file remain decisive.
Review the application
Which review step follows when assets are insufficient?
The check structures assets, the court order and the deadline. It does not replace review of the actual order.
Discuss the specific matter with the firm.
What is already clear from the file?
Your answers
Review the documents
Document payment on time
Keep the order, amount, payment date and proof of payment together. Under section 71a(3) IO, an advance paid on time may only be asserted as a claim against the estate.
Read the order and deadline precisely
Check the served order for amount, start and end of the deadline and the payment method. Section 71a IO links opening to timely payment of the ordered advance.
Review the legal-person route
For a legal person, section 72 IO requires separate review of an advance by corporate representatives and established assets from which costs can be recovered.
Complete the procedural file
Secure the insolvency application, court notices, asset statement and service records. Only then can the next step under section 71 or 71a IO be classified.
Review the effect of late payment
Section 71a(2) IO provides for dismissal of the application for lack of sufficient assets when the advance is not paid on time. Review the order, deadline and payment proof together.
What counts as sufficient assets
Section 71(1) and (2) IO requires assets that cover at least the initial costs of the insolvency proceedings. The statute does not require immediate realisation or realisation without effort. The type, value, access and realistic realisation of each asset therefore need to be shown together.
In this assessment, the court may obtain statements from privileged creditor protection associations or commission enforcement bodies to investigate. At the examination, the debtor must submit an asset statement and provide information about avoidance claims.
For the applicant, a coherent file is decisive: assets, encumbrances, expected realisation proceeds and initial costs belong in one overview. The review of a claim against the estate after opening concerns a later decision point.
How section 71a IO orders the cost advance
How section 71a IO orders the cost advance
If assets are unlikely to cover the costs, proceedings may nevertheless open when the applicant pays, on the court’s order and within a defined deadline, an amount set by the court to cover those costs. The actual order is decisive.
The order is made by decision and is also served on each privileged creditor protection association. Under section 71a(1) IO it is not separately appealable and is not enforceable. The court may require an advance even where the assets consist of avoidance claims or other claims and receivables.
This article does not state a general amount or deadline. Both must be read from the court order and reconciled with proof of service and proof of payment.
Separate late payment from the later estate claim
Separate late payment from the later estate claim
If the advance is not paid on time, section 71a(2) IO provides for dismissal of the application for lack of sufficient assets. The applicant must be informed of this consequence together with the order. Evidence of the deadline is therefore central to the file.
An amount paid on time may, under section 71a(3) IO, only be asserted as a claim against the estate. That classification concerns later assertion of the amount. It does not replace review of the opening decision and is not a blanket promise of immediate repayment.
Keep the order, service record, payment instruction, bank record and later court decision in one chronology. The payment reference should correspond with the order.
Special rule for legal persons under section 72 IO
Special rule for legal persons under section 72 IO
Section 72 IO provides a separate rule for a legal person. Even where it lacks sufficient assets, proceedings may open if its corporate representatives pay an advance or it is established that they have assets sufficient to cover the costs.
Under section 72(2) IO, a creditor application is only dismissed after neither an advance by the corporate representatives nor assets from which it can be recovered is established. The review therefore covers the legal entity, its corporate representatives, the advance and established assets.
This route must be distinguished from the applicant’s general cost advance under section 71a IO. The review of buying a business unit from the insolvency estate concerns realisation after opening and not the cost condition for opening.
Secure the deadline and payment proof: For a cost advance under section 71a IO, the court order, exact amount and timely payment control the result. A general assumption about the deadline or amount cannot replace review of the file.
Organise the documents for the opening review
Organise the documents for the opening review
The file should contain the insolvency application, court orders and notices, service records, payment proof, the asset statement and documents for realisable assets. For legal persons, add the company register extract and the allocation of corporate representatives.
Create a short timeline with the application, court order, service, deadline, payment and opening or dismissal decision. Mark whether an asset is said to cover the costs or whether the applicant or a corporate representative is expected to provide the advance.
This makes it possible to identify whether section 71, 71a or 72 IO controls the next review step. If the information conflicts, compare the court file with the payment data first.
FAQ
Frequently asked questions about the cost advance
When does the court require a cost advance? +
When there are likely to be insufficient assets to cover the costs, section 71a IO allows the court to set an amount and deadline for the applicant.
Is there one standard amount for the cost advance? +
The amount is set in the specific court order. Section 71a IO does not provide one general amount.
What happens if payment is late? +
Under section 71a(2) IO, the application is dismissed for lack of sufficient assets. Service, the deadline and the payment time must therefore be reviewed together.
Can a cost advance paid on time be reclaimed? +
Section 71a(3) IO provides that an advance paid on time may only be asserted as a claim against the estate. Enforcement depends on the proceedings and the established claim.
What applies to a legal person? +
Section 72 IO additionally addresses an advance by corporate representatives or established sufficient assets of those representatives.
Next steps
Review the procedural file and assets separately
Estate claim after insolvency opens
Classify supply, invoice and legal basis after proceedings open.
Buy a business unit from the insolvency estate
Review documents and risks before making an offer for a business unit.
Contact
Have court orders, deadlines and payment records reviewed.
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Topics
Insolvency openingCost advanceSection 71a IOSufficient assets
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