I. Legislation status

On 21 May 2021, the Bundestag gave its approval to not one but two tax bills. On the one hand, various changes in the area of international tax law are planned due to the draft Act Implementing the Anti-Tax Avoidance Directive (Gesetz zur Umsetzung der Anti-Steuervermeidungsrichtlinie – ATAD), also known as the ATAD Implementation Act (there will be a separate newsletter article on this). On the other hand, the Act on the Modernization of Corporate Income Tax Law (Gesetz zur Modernisierung des Körperschaftsteuerrechts – KöMoG) is intended to take a further step towards a tax system that is neutral in terms of legal form. The so-called option model is crucially important in this context, although its tax system approach is not new. More than 20 years ago, the model was already the subject of a reform project (see parliamentary publication (Bundestagdrucksache) 14/2683) – but obviously without success at the time. The current legislative process, on the other hand, is more successful. The Bundesrat gave its approval on 25 June 2021, so the new regulations will be applied as early as next year.

II. Option model

1. Tax system classification and legislative objective

The taxation systems of corporations and partnerships are fundamentally different under the current law. While the taxation of corporations is based on a strict separation between the company and its shareholders (separation principle (Trennungsprinzip)), the transparency principle applies to partnerships, with the result that income is always taxed at the level of the persons involved (so-called co-entrepreneurs (Mitunternehmer)). Only for the purposes of trade tax the partnership is regarded as an independent taxable entity. The resulting difference in the tax burden between the two legal forms has so far been mitigated by the flat-rate crediting of trade tax against income tax (Sec. 35 German Income Tax Act (Einkommensteuergesetz – EStG)) and by the preferential treatment of undistributed profits (accumulation reserve (Thesaurierungsrücklage) pursuant to Sec. 34a EStG). However, experience shows that a complete alignment of the tax consequences often cannot be achieved with these two regulations. In the case of Sec. 35 EStG, this is due to credit surpluses (trade tax rate higher than 420 %), and in the case of Sec. 34a EStG, it is due to the unattractive subsequent taxation consequences. In the future, the option model is to ensure the neutrality of legal form that has been demanded for years.

2. Tax consequences of the option model

Under the option model, partnerships have the possibility of being treated like a corporation for income tax purposes by means of an application. Commercial partnerships and partnership companies are eligible to apply, but not sole proprietorships, partnerships under civil law (GbR) and other joint ventures.
The opting partnership then has to bear all the tax consequences characteristic of corporations. The exemption provision of Sec. 8b German Corporate Income Tax Act (Körperschaftsteuergesetz – KStG), for example, applies to dividends and capital gains. Profit shares are not deemed to be distributed until they are withdrawn or their payment is requested (Sec. 1a para. 3 sentence 5 draft KStG). The company is required to withhold tax on capital gains. In addition, the numerous facts of hidden profit distribution must be taken into account. As a result, it is necessary to conduct an appropriateness test for relationships between the company and its shareholders.
The option has no effect on sales tax. For the purposes of the inheritance and gift tax exemption regulations (Sec. 13a and 13b ErbStG), opting partnerships also continue to be regarded as co-entrepreneurs (Mitunternehmer). This is advantageous insofar as the gratuitous transfer of co-entrepreneurial shares – in contrast to corporations – still does not require a minimum shareholding of “more than 25 %”. For real estate transfer tax purposes, the option only has no effect if the blocking periods (Sperrfrist) of Sec. 5 and Sec.6 German Real Estate Transfer Tax Act (Grunderwerbsteuergesetz – GrEStG) are complied with (cf. on the new 10-year blocking period our newsletter article on the 2021 land transfer tax reform).
The option model consistently implements the separation principle characteristic of corporations for tax purposes, so that the taxation system also changes fundamentally at shareholder level once the option has been exercised. For tax purposes, the co-entrepreneurial position becomes a shareholding of a non-personally liable partner in a corporation (Sec. 1a para. 1 sentence 1 KStG draft). As a consequence, the partners of an opting commercial partnership generate income from capital assets instead of income from trade or business. In the case of shareholders in the legal form of a corporation, tax-exempt income exists, subject to the participation threshold of Sec. 8b para. 4 KStG (Sec. 8b para. 1, para. 5 KStG).

3. Option counts as change of legal form

If the decision has been made in favor of the option model, an application must be submitted no later than one month before the beginning of the relevant financial year (Sec. 1a para. 1 sentence 2 draft KStG). The application has no retroactive effect and is intended to be possible for the first time in 2021 with effect for fiscal years beginning after 31 December 2021 (Sec. 34 para. 1a draft EStG).
Under tax law, the transition to corporate taxation takes place as a “fictitious” change of legal form in accordance with the German Reorganization Tax Act (Umwandlungssteuergesetz – UmwStG). Accordingly, the regulations on contributions to corporations (Sec. 25 in conjunction with Sec. 20 to 23 UmwStG) apply. The option or the associated change of legal form is therefore only tax-neutral if the requirements for the book value approach pursuant to Sec. 20 UmwStG are met. In this context, it must be noted in particular that functionally essential special business assets may not be retained in order to achieve tax neutrality of the transaction and consequently must have been transferred to the corporate assets of the corporate income tax subject on a regular basis beforehand; however, deadlines may also have to be observed in this respect.
In addition to the immediate tax consequences, such as the loss of any trade tax losses and the obligation to release any retention reserves, the co-entrepreneurs must be aware that hidden reserves may also be disclosed in subsequent years. This is because, due to the fictitious change of legal form, the realization and substitute realization provisions of Sec. 22 UmwStG must be observed for a period of seven years. Accordingly, subsequent taxation occurs, for example, if the shares are sold by a shareholder or former co-entrepreneur within this blocking period (Sperrfrist).

4. Re-option/ -change

However, exercising the option does not mean that the change to the corporate taxation system must be final. The bill includes the possibility of a re-option. The deadlines are the same as for the option: A return to the transparency principle is possible upon request and with effect for the following fiscal year. For tax purposes, the re-option is considered a change of legal form (Sec. 9 UmwStG). The re-option could be interesting, for example, in the case of intentions to sell in order to be able to take advantage of the benefits granted only in the case of partnership shares (special tax allowance and tariff reduction). However, a (timely) re-option should be well considered for several reasons. The disadvantages include (i) the loss of existing losses, (ii) the threat of subsequent taxation under Sec. 22 UmwStG (provided that seven years have not yet elapsed) and (iii) the trade tax liability of the capital gain if the sale of the partnership interest takes place within five years of the exercise of the re-option (Sec. 18 para. 3 UmwStG).
Even without an option, a “reversion” occurs if the partnership has only one partner (accretion (Anwachsung)), since the option model is not open to sole proprietors. The possible negative tax consequences should be avoided by converting the company into a corporation.

III. Conclusion and initial favorable considerations

A taxation system that is (largely) neutral in terms of legal form is undoubtedly desirable from a tax system perspective. The legislature reform plans are therefore to be welcomed in principle. In practice, however, the question arises for whom or in which constellations the envisaged option model can be advantageous.
First of all, a comparison of the total tax burden makes it clear that the option model can lead to a somewhat higher tax burden in the case of distribution due to the separation principle. In contrast, the option model is generally advantageous in terms of liquidity in the case of accumulation (Thesaurierung). This is because, in the case of profit accumulation (Gewinnthesaurierung), the lower taxation at company level remains in effect (for the time being). In addition to the tax burden, however, it should be borne in mind before exercising the option that the conversion tax blocking periods associated with the system change considerably restrict flexibility. Therefore, despite or even because of the possibility of the re-option, longer-term planning is essential in the decision-making process, both at the company and shareholder level. A short-term or regular switch between the two tax systems only makes sense in exceptional cases.
As with almost every comprehensive reform, there are also a number of crucial questions, such as the ability of the opted company to act within a tax group (Organschaftsfähigkeit), which have not yet been conclusively clarified. The option model will therefore be accompanied by a certain degree of legal uncertainty, at least in the initial period. In the international context, there are two main aspects to consider. On the one hand, it is currently still unclear how an opting commercial partnership is to be classified in a comparison of legal types. On the other hand, the shares in an opting commercial partnership are deemed to be shares within the meaning of Sec. 17 EStG (Sec. 17 para. 1 sentence. 3 draft EStG), so that the option is accompanied by the problem of exit taxation (Wegzugsbesteuerung) pursuant to Sec. 6 AStG.
As a result, it can be stated that the option model represents an interesting alternative to the existing regulations. With regard to taxation that is neutral in terms of legal form, it is in fact accurate to speak of a modernization of the tax system. However, the decision in favor of or against the model must always be examined in detail on a case-by-case basis, also taking into account the provisions of the Articles of Association. It is advisable to plan for a long time period. It is also clear that the option model can have disadvantages depending on the constellation. The possibility of “cherry-picking” would also be too much to ask for in terms of a stringent and system-compliant tax system.