Incongruent profit distributions
Incongruent profit distributions and their tax recognition are a perennial topic in case law and consulting practice. While the tax authorities tend to classify deviating resolutions on the distribution of profits as an abuse of the tax system (§ 42 German Fiscal Code (Abgabenordnung – AO)), acceptance is much greater in the case law of […]
No limitation of the formation expenses to 10% of the share capital in the case of other free assets of a GmbH
In its decision of 26 October 2021, the Berlin Appellate Court ruled that the assumption of the formation expenses by a company is not limited in each case to an amount equivalent to 10% of the share capital. A takeover with a higher percentage is possible in particular if the company has free capital available […]
Changes in the law on sales and new rules for contracts for digital products
In order to cope with the ongoing digitization and networking of the economy and society, the European Union wants to create the legal framework for a common digital single market. The Sale of Goods Directive and the Digital Content Directive are intended to contribute to this. Both directives were implemented in German law with effect […]
Update on the scope of liability for immoral delay in filing for insolvency
In the event of insolvency or overindebtedness of a legal entity, the members of the representative body or the liquidators are obliged to file for insolvency. In the event that the application for commencement of insolvency proceedings is not filed or not filed in due time, the representative body risks not only criminal prosecution but […]
The partnership as subsidiary company for VAT purposes
In its ruling of 15 April 2021, the ECJ has rejected the legal opinion of the tax authorities and the Fifth Senate of the German Federal Fiscal Court (Bundesfinanzhof – BFH): contrary to their opinion, a national restriction of a taxable entity with regard to partnerships as subsidiary companies is not compatible with EU law.. […]
Modernization of the law on partnerships: evolution from practical experience – but still a need for action
The modernization of partnership law has been completed. The provisions of the Act on the Modernization of Partnership Law (Gesetz zur Modernisierung des Personengesellschaftsrechts – MoPeG) will come into force on 1 January 2024. It is true that the main purpose of the new provisions is to eliminate the current discrepancy between the regulatory concept […]
BFH affirms legal tax structuring for partial “evasion” of speculation tax in the case of real estate sales pursuant to § 23 para. 1 sentence 1 no. 1 German Income Tax Act (EStG)
In its ruling of 23 April 2021 – IX R 8/20 – the Federal Fiscal Court (Bundesfinanzhof – BFH) decided that the transfer of a rented residential property to children as a gift for subsequent sale does not constitute abusive tax planning. This decision means that tax-optimized property sales, particularly in the context of anticipated […]
Bundestag approves the establishment and operation of a basic company register
On 27 April 2021, the Bundestag approved the draft law on the establishment and operation of a register of basic company data and the introduction of a standardized national business number for companies (Basic Company Data Register Act (Unternehmensbasisdatenregistergesetz – UBRegG)). The UBRegG essentially already came into force on 15 July 2021 and is intended […]
Transparency for the whole of Europe! – another law reform of the Money Laundering Act – and no end in sight!
The Transparency and Finance Information Act (Transparenz-Finanzinformationsgesetz), which came into force on 1 August 2021, has transformed the transparency register from a “backup register” into a “comprehensive register”. Now, almost all associations with a legal entity in Germany are obliged to disclose their beneficial owners to the transparency register. Companies of all sizes should use […]
Scope of the negative legitimation effect of the list of shareholders of a GmbH
In a more recent decision, the Federal Court of Justice (ruling of 26. January 2021, case no. II ZR 391/18) has once again dealt with the so-called negative legitimation effect of the list of shareholders pursuant to sec. 16 para. 1 sentence 1 GmbHG within a short period of time. According to this, only the […]