I. General information

The Reorganization Tax Act enables transformations (change of legal form, demerger, spin-off, merger) and contributions to be carried out in a tax-neutral manner. As a “special law” that does not standardize a separate type of tax, but rather represents a modification or supplement to the Income Tax Act (Einkommensteuergesetz), Corporation Tax Act (Körperschaftsteuergesetz) and Trade Tax Act (Gewerbesteuergesetz), the Reorganization Tax Act has numerous ambiguities and room for interpretation.
Around thirteen years after the publication of the reorganization tax decree of 11 November 2011, the tax authorities have now revised the reorganization tax decree (BMF of 2 January 2025; “Reorganization Tax Decree 2025”). In particular, it incorporates the case law of the Federal Fiscal Court that has been issued in the meantime as well as amendments to the law. In the Reorganization Tax Decree, the tax authorities set out their view on the application and interpretation of the provisions of the Reorganization Tax Act.

II. New features of the Reorganization Tax Decree 2025

(a) Mergers

(a1) Book value application

An application is required to utilize the book value approach in the context of mergers (section 3 para. 2 sentence 1 German Reorganization Tax Act (Umwandlungssteuergesetz, “UmwStG”). This application can be made implicitly by expressly declaring that the tax balance sheet within the meaning of section 4 para. 1, section 5 para. 1 German Income Tax Act (Einkommensteuergesetz, “EStG”) also represents the closing balance sheet for tax purposes. This corresponds to the previous and new view of the tax authorities in the reorganization tax decree (marginal no. 03.01 Reorganization Tax Decree 2025).
A new addition is that an application for book value continuation is also to be seen if the e-balance sheet (section 5b EStG) is submitted as the balance sheet type “Conversion balance sheet, also annual financial statements” (marginal no. 03.01 Reorganization Tax Decree 2025).

(a2) Section 13 UmwStG

Section 13 UmwStG governs the taxation of the shareholders of the transferring corporation in the event of a merger of two corporations. To ensure tax neutrality, the shares in the acquiring corporation can be recognized at the book value of the shares in the transferring corporation upon request under certain conditions (section 13 para. 2 sentence 1 UmwStG). In the opinion of the tax authorities, section 13 UmwStG is also applicable in the case of a non-proportional conversion with or without a shift in value between the shareholders (margin no. 13.03 Reorganization Tax Decree 2025). The tax authorities have thus adopted the view of the BFH.
However, it should be noted that shifts in value between shareholders in the context of a merger may have gift tax consequences and, if a related party benefits, may result in a hidden profit distribution or withdrawal by the donor (see also marginal no. 13.03 Reorganization Tax Decree 2025).

(b) Demergers

Within the scope of section 15 UmwStG, demergers can be carried out at book values with no tax impact. This requires that the transferring corporation has only partial operations. The individual assets must be allocated to the respective business units. According to the previous administrative interpretation, assets that can be allocated to several business units on the basis of economic relationships could be freely allocated to the individual business units. According to marginal no. 15.08 Reorganization Tax Decree 2025, an asset that can be allocated according to economic contexts, which is used by several business units and is not divided up, is now to be allocated uniformly to the business unit in which it is predominantly used. Consequently, an allocation is made according to the highest proportion of use.
The tax neutrality of the demerger is subject to compliance with the so-called post-demerger divestiture block (section 15 para. 2 sentence 2 et seq. UmwStG). Accordingly, a tax-neutral demerger is not possible if the sale to external persons is completed or prepared by the demerger (section 15 para. 2 sentence 2 UmwStG). According to the revised opinion of the tax authorities in marginal no. 15.24 Reorganization Tax Decree 2025, such a detrimental disposal exists both in the case of a conversion of the legal entities directly involved in the demerger and in the case of a conversion of the shareholders of the legal entities involved. On the other hand, the sale of shares in the parent company is not harmful (i.e. in the case of an indirect sale).

(c) Contributions

(c1) Overall plan jurisdiction

In accordance with the 2011 reorganization tax decree, the overall plan case law was to be observed for the question of whether the transfer or transfer of functionally essential business assets in temporal and economic connection with a contribution to another business asset leads to the tax relief (book or intermediate value approach) being denied in accordance with section 20 UmwStG. An overall plan within the meaning of the BFH case law is regularly characterized by the fact that a uniform economic situation is “artificially” broken down on the basis of a prior, targeted plan and the individual partial acts are only significant insofar as they promote the achievement of the final state.
The reference to the overall plan case law was not abandoned in the course of the revision of the reorganization tax decree (marginal no. 20.07 Reorganization Tax Decree 2025). The tax neutrality of the contribution can therefore still be denied on the basis of the existence of an overall plan.

(c2) Co-transfer of special business assets

The contribution of a co-entrepreneur’s share to a corporation in return for the granting of company rights can be made at book value and therefore tax-neutral upon application in accordance with the requirements of section 20 UmwStG. Not only the contribution of the entire co-entrepreneur’s share is eligible, but also the contribution of part of the co-entrepreneur’s share. In the opinion of the tax authorities, the associated functionally significant special business assets must also be transferred at least on a pro rata basis (margin no. 20.11 Reorganization Tax Decree 2025). This means that an under-proportional transfer of special business assets results in access to section 20 UmwStG and thus to a tax-neutral contribution being denied. An over-proportional transfer of special business assets, on the other hand, is harmless.

(c3) Trade tax on contribution profit

A contribution under section 20 UmwStG or section 21 UmwStG below the fair market value is subject to the lock-up periods under section 22 UmwStG. If the shares subject to the blocking period are sold within the seven-year blocking period, there is a (pro rata) subsequent taxation of a contribution profit I or II retroactively to the time of the contribution. According to the BFH, the contribution profit is not subject to trade tax if the contribution at fair market value would not have led to a trade tax burden (BFH of 11 July 2019 – I R 13/18 and I R 26/18). This is the case if the transferor is a natural person (section 7 sentence 2 GewStG). The tax authorities have adopted this case law in the new reorganization tax decree (margin no. 22.07 and margin no. 22.13 Reorganization Tax Decree 2025).
From the taxpayer’s point of view, this clarification is to be welcomed, even if the above-mentioned rulings have already been published in the Federal Tax Gazette and were therefore already to be applied by the tax authorities.

(c4) Re-exception for a breach of the retention period

As part of the Annual Tax Act (Jahressteuergesetz) 2024, an exception to the retroactive taxation of a contribution gain II (rückwirkende Besteuerung eines Einbringungsgewinns II) was introduced. Pursuant to section 22 para. 2 sentence 5 UmwStG, the lock-up period pursuant to section 22 para. 2 sentence 1 UmwStG is irrelevant if the shares received are sold by the transferor and hidden reserves are disclosed.
According to the wording of the law, a breach of the lock-up period is therefore irrelevant on a pro rata basis (“insofar as” hidden reserves are disclosed). The tax authorities assume – contrary to the wording of the law – that this exception only applies if the hidden reserves in the shares received are fully disclosed (marginal no. 22.17 Reorganization Tax Decree 2025). If, for example, the shares received are contributed at an interim value, which in principle constitutes a sale, the tax authorities believe that a contribution gain II should continue to be taxable in full in the event of a breach of the lock-up period.

(c5) Granting of company rights

In the new Reorganization Tax Decree, the tax authorities have also updated the explanations as to when company rights are granted within the scope of section 24 UmwStG (marginal no. 24.07 Reorganization Tax Decree 2025). If a co-entrepreneur already holds a 100% share in a partnership (one-person GmbH & Co. KG), their capital account must be increased in the event of a further contribution of a business, business unit or co-entrepreneur share.
Posting to a variable capital account (e.g. capital account II) or to a reserve account tied to the company as a whole or to a mere loan account does not result in the granting of company rights and is therefore not.
In the case of mixed consideration (i.e. where company rights and other compensation payments are granted), the contribution can be made at book value or an intermediate value upon request, provided that the fair market value of the other consideration does not exceed the amount limits of section 24 para. 2 sentence 2 no. 2 UmwStG.

III. Conclusion

The new reorganization tax decree implements established case law and legislative amendments, thereby creating more certainty in the practical application of the law. It applies to all open cases and replaces the BMF letter dated 11. November 2011, Federal Tax Gazette. I p. 1314. If the legal situation has changed significantly between the realization of the taxable event and 2 January 2025, this only applies insofar as the application of this letter does not contradict the legal situation applicable in the individual case
As before, many questions remain unanswered. Taxpayers are advised to obtain binding information if necessary.