Partial income method – activity – subsidiary

The tax liability of private capital gains

is regularly compensated by the capital gains tax deduction. If the standard income tax rate is lower than the 25% capital gains tax rate, an application can be made to include the investment income in the income tax assessment and offset the capital gains tax (so-called favorable review). In addition to the saver’s lump sum of 801 euros (married couples double this amount), actual income-related expenses cannot be taken into account as a rule. For shareholders of a corporation, however, there is an additional option if

– the participation is at least 25%
or
– the shareholding amounts to at least 1% and significant entrepreneurial influence can be exerted on the company’s economic activity through professional activity for the company.

In these cases, it is possible to request that 60% of the profit distributions be included in the assessment (with full crediting of the capital gains tax); 60% of the expenses in connection with the investment can then be deducted as income-related expenses (so-called partial income procedure).

Questionable was,

whether, in the case of a shareholding of less than 25%, there is an activity “for” a company even if the activity is carried out exclusively for a subsidiary. The Federal Fiscal Court has now affirmed this. This means that the option to tax the income at (only) 60% (including the partial deduction of income-related expenses) is also available if there is a small shareholding in the parent company and only work for a subsidiary. Since the current version of the law requires that there must be a “significant entrepreneurial influence” on the activities of the (parent) company due to the activity, not only a corresponding activity at the subsidiary will be required, but probably also a particular economic importance of the subsidiary for the parent company.

(Further comments & information on this can be found in our information letter 09/2018 under item 1.)