Securing the preservation of the company, maintaining family peace and protecting the economic hedging of all family members – in order to achieve these goals, an entrepreneur should deal with succession plans at an early stage and should not rely on the statutory provisions on succession. When drafting the articles of association and then also when drafting the testamentary disposition, there are various structuring possibilities, some of which are explained below.
Shares in corporations, except shares in non-member States, are granted tax concessions for inheritance and gift tax purposes if the testator or the donor directly held more than 25 % of the nominal capital of a company. The threshold of 25 % also applies to the question of whether so-called administrative assets are involved. Pool agreements make it possible to achieve the required quota. The German Federal Fiscal Court [BFH] clarified what needs to be considered in this respect.
On 20 March 2019, the Federal Ministry of Justice and Consumer Protection submitted a draft bill on ARUG II, the legislative act implementing the Second EU Shareholders’ Rights Directive. Compared to the initial draft bill published last autumn, some considerable changes have been incorporated.
Two current decisions are addressing the question, whether an (externally hired) managing director of a limited liability company can be regarded as employee. While being denied by the Federal Labor Court in its decision of 21 January 2019 (file no. 9 AZB 23/18), the Federal Court of Justice grants an externally hired managing director the status of an employee (decision of 26 March 2019, file no. II ZR 244/17). Nonetheless, the two decisions are not contradictory.
In spring 2019, the European Court of Justice (ECJ) decided that in certain constellations a deferral of payment of the tax payable in the event of a transfer of domicile (section 6 German Foreign Transaction Tax Act) must also be granted when relocating to Switzerland, i.e. also in relation to a third country. This results from the Agreement on the Free Movement of Persons, which was concluded between the member states of the EU and Switzerland in 1999.
The German Trade Secrets Act has come into effect on April 26, 2019. It was intended as a facilitation of law enforcement in Europe, but now it leads to vast bureaucracy. Companies need to figure out technical and organizational measures to protect their own data. In this article, we will illuminate what this means for transactions and how to deal with the biggest “risk factor” – employees.