I. Facts of the case

The claimant, a natural person, and T-GmbH each held 50 % of the shares in K-GmbH. The claimant was also the sole shareholder and managing director of T-GmbH.
The articles of association of K-GmbH authorized the withdrawal of advance payments on the anticipated annual profit by resolutions of the shareholders’ meeting passed by a simple majority. However, the articles of association contained neither a provision on the distribution of profits (deviating from the company’s circumstances) within the meaning of § 29 para. 3 sentence 2 German Act on Limited Liability Companies (Gesetz betreffend die Gesellschaften mit beschränkter Haftung – GmbHG) nor an opening clause.
In each of the years in dispute 2012 to 2015, the shareholders’ meeting of K-GmbH unanimously passed resolutions on advance distributions. The advance distributions were paid exclusively to T-GmbH. In the years in dispute, the claimant did not declare any income under § 20 para. 1 no. 1 German Income Tax Act (Einkommensteuergesetz – EStG) from capital assets due to distributions made by K-GmbH.

II. Opinion of the tax authorities

Following an external audit of K-GmbH, the defendant tax office issued amended income tax assessments and attributed income from capital assets to the claimant pursuant to § 20 para. 1 no. 1 sentence 2 EStG from hidden profit distribution in accordance with his shareholding in K-GmbH and thus in the amount of 50% of the profit distributions made. In the opinion of the tax authorities, the advance profit distributions were “null and void resolutions breaching the articles of association”, so that the civil law requirements of an ordinary, open profit distribution were not met. The claimant, prompted by the corporate relationship, had transferred the distribution amounts to which he was entitled to T-GmbH as contributions by way of an abbreviated payment method. He therefore received income from hidden profit distributions pursuant to § 20 para. 1 no. 1 sentence 2 EStG. Even if distribution resolutions effective under civil law were assumed, this would constitute an abuse of the tax system pursuant to § 42 AO. The distributions are received by K-GmbH largely tax-free due to the preferential treatment under § 8b German Corporate Income Tax Act (Körperschaftsteuergesetz – KStG).
The view of the defendant tax authority is in line with the administrative opinion. Accordingly, incongruent disproportionate profit distributions are only recognized for tax purposes if they are effective under civil law. In its BMF letter dated 17 December 2013 IV C 2 – S 2750 – a/11/10001, the Federal Ministry of Finance set out criteria for the tax recognition of incongruent disproportionate profit distributions.
The deviating profit distribution is generally recognized for tax purposes if it is effective under civil law. In the opinion of the Federal Ministry of Finance, this is only the case if

a) a different standard for the distribution of profits is stipulated in the partnership agreement pursuant to § 29 para. 3 sentence 2 GmbHG, or
b) the articles of association contain a clause entitling the shareholders, with the consent of the interfering shareholders or unanimously, to resolve on a distribution of profits deviating from the provisions of the articles of association (opening clause).

The letter from the Federal Ministry of Finance is thus in principle in line with the opinion of the Federal Fiscal Court (BFH) (cf. ruling dated 4 December 2014 – IV R 28/11), according to which incongruent profit distributions are to be recognized for tax purposes if they are based on a previous amendment to the articles of association, which regulates a different distribution of profits pursuant to § 29 para. 3 sentence 2 GmbHG.
In the absence of a corresponding provision in the articles of association of K-GmbH, the defendant tax authority considered the shareholders’ resolutions of K-GmbH to be invalid under civil law.

III. BFH ruling of 28 September 2022 – VIII R 20/20

In its ruling of 28 September 2022 – VIII R 20/20 – the BFH has now decided that the claimant is not entitled to income under § 20 para. 1 no. 1 EStG. There would be neither a hidden profit distribution § 20 para. 1 no. 1 sentence 2 EStG nor an abusive arrangement within the meaning of § 42 AO.
According to the case law of the BFH, resolutions on the distribution of advance profits which are valid under civil law, i.e. which are not null and void or have not been declared null and void due to a legal challenge, are to be recognized for tax purposes.
Contrary to the opinion of the tax authority and the Federal Ministry of Finance, the resolutions on the distribution of advance profits in dispute are not null and void, but are in principle effective and binding as resolutions on the distribution of profits breaching the articles of association at certain points.
According to the BFH’s argumentation, the tax authorities’ view is too short-sighted. Resolutions that violate the articles of association are not per se void under civil law, even if the articles of association do not contain an opening clause. In the case of resolutions on the appropriation of profits that violate the articles of association, it must be examined on a case-by-case basis whether they are valid under civil law.
For the validity under civil law of resolutions breaching the articles of association, a distinction is made according to the prevailing opinion as to whether the shareholder resolution breaching the articles of association has a regulatory content with a permanent effect or merely has a selective effect. If there is a resolution with a permanent effect breaching the articles of association, this is deemed null and void even in the case of a unanimously adopted resolution if the formal requirements of an amendment to the articles of association have not been complied with, in particular notarization and entry of the resolution in the commercial register (§§ 53 para. 2 sentence 1 subpara. 1, 54 para. 1 GmbHG).
If, however, the resolution breaching the articles of association only has an individual effect, the articles of association are infringed by the resolution but not changed for the future. Such resolutions that selectively violate the articles of association are effective unless an impaired shareholder challenges the resolution.
In the case of resolutions on the appropriation of profits, it has so far been disputed and not decided by the German supreme court whether a resolution with individual effect or with permanent effect exists. Some commentators consider resolutions on the appropriation of profits to be measures with permanent effect, since the resolution on the individual decision on the distribution entitles the holder to retain the distributed profits in the long term. According to this view, any resolution that permanently leads to a situation that is in conflict with the articles of association is invalid. The very question of permanent effect is disputed. However, a distinction must be made as to whether the articles of association are left unchanged by the resolution, whether grounds for nullity analogous to § 241 German Stock Corporation Act (Aktiengesetz – AktG) apply, or whether the protection of legal transactions requires an entry in the commercial register.
The BFH follows the latter argumentation. First of all, it states that the resolutions on the advance distribution of profits do not change the existence of the articles of association of K-GmbH and that, consequently, they are only resolutions that violate the articles of association in certain respects. This is because each resolution on the advance distribution was based on a new resolution of intent, the effect of which was exhausted in each case in the outflow of the distribution to T-GmbH.
The protection of legal relations also does not justify a different decision on the validity of the resolutions. An advance distribution is an anticipated profit distribution permitted under corporate law which is not subject to the articles of association. Creditors and potential purchasers would therefore have to inform themselves in any case about advance distributions made and their distribution in order to examine any claims for repayment (Rückforderungsansprüche) by the company.
Accordingly, the resolutions on the distribution of advance profits adopted unanimously in this case are effective under civil law, as there are neither grounds for nullity under § 243 para. 1 AktG nor are the resolutions contestable on account of the unanimity and the lapse of time.
The defendant tax authority also argued that the profit distributions should be classified as hidden profit distributions to the claimant, also on the basis of an arm’s-length comparison, since they were made in connection with the corporate relationship. The BFH rejects this on the grounds that an arm’s length comparison is not relevant in the case of open profit distributions. It is an open profit distribution based on the corporate relationship between T-GmbH and K-GmbH, so that a hidden profit distribution to the claimant is excluded.
The BFH rejects an abuse of tax structuring based on the lack of a tax advantage. An abuse of tax structuring possibilities pursuant to § 42 AO exists if an inappropriate legal structuring is chosen that leads to a tax advantage for the taxpayer or a third party that is not provided for by law compared to an appropriate structuring. In accordance with an incongruent resolution on the distribution of profits, which is based on an opening clause, the taxpayer has no tax advantage in the case of an incongruent resolution on the distribution of profits that breaches the articles of association. Furthermore, almost every hidden profit distribution is usually also an incongruent distribution to the receiving shareholder and is taxed at the level of the receiving shareholder. There is no reason to treat open incongruent profit distributions, which are in line with company law, differently for tax purposes.
The BFH is also correct in pointing out that the claimant has not, as a result, gained a permanent tax advantage by shifting the distribution potential to T-GmbH. This is because in the case of subsequent distributions from T-GmbH, the claimant is subject to the same tax consequences as in the case of distributions from K-GmbH, so that income tax recognition was merely postponed.

IV. Recommendation for the practice

The BFH’s ruling is to be welcomed and is in line with the BFH’s established case law, according to which incongruent resolutions to distribute profits are to be recognized if they are based on a resolution to distribute profits that has been validly concluded under civil law.
However, on the question of whether the resolution on the distribution of profits is effective under civil law, the BFH has followed an opinion in corporate law discourse that has not yet been confirmed by supreme court case law. In its ruling, the BFH also refers exclusively to incongruent resolutions on the distribution of advance profits that breach the articles of association. It is therefore still advisable to include at least an opening clause in the articles of association before resolving on (incongruent) profit distributions that breach the articles of association, in order to ensure effectiveness under civil law in any case and to counteract a deviating opinion of the tax authorities.