It is possible that an asset is to be accounted for both in the special business assets and in the business assets. This is called accounting competition. This can happen if they are partners of a partnership, for example of a limited partnership, and lease a property to this limited partnership, which they hold in their sole proprietorship. Competition in accounting can also arise within the framework of an operating split. Then there is the question of where the asset is to be accounted for, or whether special business assets and business assets are equally entitled next to each other or which assets are given priority.

The accounting competition is spoken of when an economic good is to be accounted for in both operating assets and special operating assets. Operating assets characterize the entrepreneurial area of a sole proprietorship or a corporation. There are the assets intended to serve the enterprise (so-called fixed assets) or those intended for consumption in the enterprise (so-called working capital). Consequently, in principle, all assets used by the company for operating activities are included in the assets.

In the context of a partnership, a distinction is made between the total assets and the special assets. The special business assets include assets which actually belong to one or more of the shareholders under civil law, which have been transferred to the company so that it can use them to generate income within the meaning of § 15 I 1 No. 2 p. The special business assets are outside the company’s collective hands. Therefore, it is rather the shareholder.

As a result of the allocation to the special business assets and to the business assets, the income that you earn with the economic good, for example, in a house that you rent and actually earn rental income, is subject to trade tax in accordance with § 7 GewStG as commercial income. In addition, the assets are then tax-related. Therefore, in the case of sale or withdrawal, the hidden reserves are subject to taxation. The advantage is that they can then write off the assets according to § 7 EStG and deduct them as operating expenses.

As shown above, business assets and special business assets are subject to business tax. Then it may happen that the income is subject to trade tax twice. In addition, you may have to tax hidden reserves twice if you withdraw the asset from both special business assets and business assets. As a result, there is a double tax burden which is unjustified. Therefore, the problem of accounting competition must be solved. Consequently, in the case of accounting competition, priority must be given to either the operating assets or the special operating assets.

A case of accounting competition exists if you engage in commercial real estate trading and lease the property in your then existing sole proprietorship to the partnership in which you are involved. Then the property is first assigned to the special assets I within the framework of the partnership and the assets of your sole proprietorship.

Furthermore, in the case of a joint venture, accounting competition can occur. The prerequisite for this is that the operating company generates commercial income. In addition, there would have to be a material link and a human link between holding companies and operating companies. As a result, a joint venture can be split if you are a controlling partner of a partnership and rent out a property in your exclusive ownership. Then there is both a factual and a personal connection. Therefore, the asset must be accounted for, on the one hand, in your then-created holding company, which is a sole proprietorship, and in the context of their special business assets with the partnership.

In addition, an accounting competition comes into consideration if you, as a shareholder of a GmbH & Co.KG of Komplementär-GmbH, rent a property that you own solely and control the GmbH. Furthermore, according to BFH, Komplementär-GmbH should not operate its own business operations in addition to the general shareholder position. This constellation can lead to the property being accounted for in its special assets at the GmbH and Co.KG. and in the holding company. This is conceivable, for example, if the GmbH produces goods for the GmbH and Co.KG on the rented property.

For the priority of the special business assets could speak that this is regulated by law. Nevertheless, the norm of § 15 I 1 Nr.2 S.1 Hs. 2 EStG is merely a qualification norm and not an assignment rule. The purpose of business assets is rather to make partnerships equal to individual entrepreneurs. But if the asset is already to be accounted for in the individual enterprise, it is already subject to business tax there. Furthermore, it is also tax-related within this framework. The sense of special assets was therefore already achieved without the application of the same. Therefore, there are systematic reasons for the priority of the business assets. Consequently, in the case of an accounting competition, the asset is, in principle, to be accounted for in the operating assets of the sole proprietorship or holding company.