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Shareholder contribution

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If a share in a corporation (e.g. GmbH) is sold and the shareholding amounts to or has amounted to at least 1% of the capital of the company in the last five years, a gain is subject to the so-called partial income procedure and is only taxable to the amount of 60%. In the event of a loss (also due to the dissolution of the company), this can be offset not only against capital income, but also against other income to the extent of 60%. Since the amount of the acquisition costs of the shareholding influences the amount of the gain or loss on disposal, the question of whether funds given by the shareholder during the crisis of the GmbH are included in the acquisition costs is significant.

In the event that the shareholder grants a loan to “his” company or “leaves” a loan already granted in the insolvency proceedings, the Federal Fiscal Court has ruled that there are no (subsequent) acquisition costs; the default on the loan receivable cannot be taken into account when determining the liquidation loss.

In a recent ruling

the Federal Fiscal Court has clarified that payments made by the shareholder into the company’s capital reserve, on the other hand, generally lead to subsequent acquisition costs and thus to losses that can be offset under the partial income procedure. In the case in question, the shareholder made an allocation to the capital reserve of the GmbH in order to avoid a guarantee claim. It was irrelevant that the GmbH used the money in question to repay its bank liabilities. In the opinion of the court, there was no abuse of design options.

(For further comments, information and examples, please refer to our information letter 03/2019).

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Neumann & Walczak – tax consulting company GmbH – Robert-Bosch-Strasse 1 – 59439 Holzwickede

Neumann & Walczak Tax Consultants – Partnership –
Robert-Bosch-Strasse 1 – 59439 Holzwickede

Website: www.neumann-walczak.de – E-mail: info@neumann-walczak.de

Phone: (0049) 02301 – 91 291 0 – Fax: (0049) 02301 – 91 291 21