The adoption of the approval of the annual financial statements of a GmbH by its shareholders does not mean that the amount of the salary paid to the managing director was appropriate. A claim for repayment by the Company in this respect is therefore not excluded. However, the salary payment for the years for which the managing director was discharged by the shareholders is deemed appropriate.
Digital solutions are increasingly being used in practice to sign contracts and other binding declarations. The method to date of printing out a declaration, signing it, scanning it and then sending it has proven to be too time-consuming. Electronically generated documents and signatures can simplify the signing process. However, public administration has so far been reluctant to adopt to new digital solutions. On the occasion of a recent ruling by the Berlin Court of Appeal on the requirement for proof of changes to be entered in the commercial register that are based on an shareholders’ resolution that did not require any form, this article aims to demonstrate the possibilities for digitally designing the signing of contracts and declarations.
Contrary to the view of the tax authorities, the Federal Fiscal Court (Bundesfinanzhof – BFH) recognizes the validity under civil law of a unanimous resolution on an incongruent advance distribution, requiring the distribution resolution to be used as the basis for taxation. In contrast to the tax authorities, the BFH, in its ruling of 28 September 2022 – VIII R 20/20 – sees such a resolution neither as a hidden profit distribution nor as an abuse of the tax system under § 42 German Fiscal Code.
If the signing and the closing of the share deal occur at different times, the tax authorities consider that there are two transactions that are each subject to real estate transfer tax. As a result, real estate transfer tax may be assessed more than once for one and the same transaction. According to a new procedural norm, the risk of double taxation can be avoided, if a notification has been made in due time and complete in all parts both at the signing and at the closing.