Entries by Ester Hahn
PERSONAL LIABILITY OF THE REPRESENTATIVE OF AN UG ACTING IN LEGAL RELATIONS
According to a recent ruling by the Federal Court of Justice (ruling dated 13 January 2022, case no. III ZR 210/20), a representative acting in legal relations on behalf of an entrepreneurial company is personally liable on the basis of a prima facie case pursuant to § 179 German Civil Code (BGB) in conjunction with § 311 para. 2 and 3 BGB (analogously) if the UG does not state its legal form “exactly and to the letter” in its company name. Even the omission of only the suffix “(haftungsbeschränkt)” could trigger prima facie liability despite the use of at least the legal form “UG” or “Unternehmergesellschaft”.
THE VIRTUAL GENERAL MEETING OF THE STOCK CORPORATION – FROM A TEMPORARY EXCEPTION TO A PERMANENT SOLUTION?
The COVID-19 Act of 27 March 2020 allows stock corporations and related legal forms to hold their general meetings as purely virtual meetings without the physical presence of shareholders until the end of August 2022. Based on the largely positive experience with this form of meeting, the German government presented a draft law on 27 April 2022 which is intended to permanently introduce the virtual general meeting into the German Stock Corporation Act as an alternative to the annual general meeting in person. However, the draft contains serious deviations from the legal situation still applicable under the COVID-19 Act.
CURRENT REPORTING REQUIREMENTS IN THE TRANSPARENCY REGISTER AND UPCOMING CHANGES DUE TO THE EU MONEY LAUNDERING REGULATION
As of 1 August 2021, the transparency register was restructured by the Transparency Register and Financial Information Act. In this process, the so-called notification fiction for the reporting of beneficial owners of legal entities to the transparency register was abolished, which prompted numerous companies to make entries. The transitional periods granted by law for the implementation expire this year. This article explains which notifications need to be made. Furthermore, an outlook on upcoming changes of the transparency obligations under money laundering law due to European legislative projects is given.
THE TAX REDUCTION UNDER § 34 PARA. 3 ESTG – ALSO USED BY AN UNLAWFUL GRANTING
In its ruling of 28 September 2021 (BFH VIII R 2/19), the Federal Fiscal Court decided that the tax reduction under § 34 para. 3 German Income Tax Act is also used in the event that it was granted unlawfully and without prior application. This result may seem surprising at first glance. The taxpayer is deprived of the opportunity to decide for him/herself whether to file an application under § 34 para. 3 EStG. The BFH has limited the legally stipulated options.
VAT TREATMENT OF SUPERVISORY BOARD MEMBERS –THE TAX AUTHORITIES ARE MAKING IMPROVEMENTS
The entrepreneurial status of supervisory board members is one of the hot topics in VAT, as reflected in the frequency of the letters published by the Federal Ministry of Finance. Just half a year after the BMF letter of 8 July 2021, the tax authorities have once again issued a statement. The BMF letter of 29 March 2022 specifies the principles and answers further questions. In addition to our newsletter article of 1 October 2021, this newsletter article describes all new insights.
THE GERMAN FEDERAL LABOR COURT CLARIFIES THE IMPACT OF THE ECJ’S CCOO DECISION ON THE BURDEN OF PRESENTATION AND PROOF IN OVERTIME LITIGATION
With the ECJ ruling dated 14 May 2019 that employers must enable the recording of working time by means of an objective, reliable and accessible system, ambiguity arose as to what extent this also has an impact on the burden of presentation and proof in lawsuits brought by employees for compensation for overtime. The Federal Labor Court has now provided clarity, denied a connection and declared that it will adhere to the familiar two-step model.