In its ruling dated 6 September 2023, case reference: I R 16/21, the Federal Fiscal Court (BFH) decided that the participation threshold of 10 % under § 8b para. 4 sentence 6 German Corporation Tax Act (KStG) can also be reached if several sellers are involved in the acquisition transaction. Accordingly, it depends on the existence of an economically uniform acquisition transaction.
On 12 January 2024, the Federal Constitutional Court (BVerfG) published its long-awaited decision of 28 November 2023 (case no. 2 BvL 8/13), in which it declared the provision of § 6 para. 5 sentence 3 EStG (German Income Tax Act) to be partially incompatible with the general principle of equality under Art. 3 para. 1 of the German Constitutional Law, i.e. to the extent that a transfer of assets between sister partnerships with identical shareholdings at book value is excluded. The decision provides a certain degree of legal certainty in practice, but does not answer all open questions regarding the transfer of book values between partnerships with identical shareholdings.
From 1 January 2024, employee participation programs may fall more frequently under the benefits of § 19a German Fiscal Code (Einkommensteuergesetz – EStG) (special provision for income from employment in the case of asset participations -Sondervorschrift für Einkünfte aus nichtselbständiger Arbeit bei Vermögensbeteiligungen) and therefore benefit from the associated tax advantages.
With the Act on the Modernization of Partnership Law (Gesetz zur Modernisierung des Personengesellschaftsrechts – MoPeG), a comprehensive reform of German partnership law will come into force on 1 January 2024. This also entails a large number of legal changes for the basic form of partnerships (Personengesellschaften), the partnership under civil law (Gesellschaft bürgerlichen Rechts – GbR). This article is intended to summarize the main changes of the MoPeG for the GbR. In particular, it will be shown which changes of the MoPeG (i) merely codify – already applicable – established case law and which, on the other hand, (ii) actually constitute material changes to the previous legal situation. In particular, so-called external GbRs (Außen-GbR), which participate in legal transactions themselves, will have to take a number of changes into account in future. For example, there is the possibility of voluntary registration of the GbR in a company register (Gesellschaftsregister), whereby this can also become a “registration obligation through the back door” in practice due to legally standardized pre-registration requirements.
The Federal Social Court ruled on 29 March 2022 (case reference: B 12 KR 1/20 R) that the status determination notice is an administrative act with permanent effect that can be revoked with retroactive effect in the event of a significant change in factual or legal circumstances.