date | theme
06.07.2020 | Lock periods in conversion tax law – contribution in kind and exchange of shares
08.07.2020 | Closure periods for merger and change of form in GmbH & Co. KG: § 6 UmwStG
10.07.2020 | Tax neutral division: What is the blocking period for a split or separation?
12.07.2020 | Conversion of the GmbH into a GmbH & Co. KG: blocking period 5 years!blocking period § 18 Abs. 3 UmwStG
14.07.2020 | Lock period for contributions in kind: § 22 para. 2 UmwStG
16.07.2020 | 7 years blocking period when entering GmbH: § 24 Abs. 5 UmwStG (this contribution)
If a shareholder of a GmbH & Co. KG contributes assets of his private assets or special assets to the company, the contribution pursuant to § 24 Abs. 2 S. 2 UmwStG at book value, so that the transaction does not lead to any tax burden. This also includes 100% investments in corporations. If these shares are sold or transferred by the acquiring partnership, the blocking period of § 24 Abs. 5 UmwStG to avoid additional tax burdens. By disregarding the blocking period, § 22 para 2 UmwStG applies, whereby all hidden reserves are discovered and taxation thereof occurs.
If an economic good is transferred from a shareholder to a partnership in which he himself is a shareholder on foreign terms, there is a remunerated sale from the point of view of the shareholder, while from the point of view of the company there is an acquisition of the transferred economic good. From the point of view of the contributor, on the other hand, an exchange-like operation exists when a business, a branch or a share of a joint venture is transferred to a partnership against the granting of shareholder rights. However, from the point of view of the assuming entity, this transaction is an acquisition transaction. [] 5]
In the case of a transfer against the granting of shareholder rights, § 16 EStG would in principle apply and thus, at the time of the transfer, lead to a discovery of the hidden reserves. If certain conditions of § 24 UmwStG are met, the basic rule of § 16 EStG is overridden. [] 6]
Since transactions under § 24 UmwStG require a sale, § 6 para. 3 EStG by the condition of a free transfer clearly off.[7] Also § 6 Abs. 5 EStG is not in competition, as individual goods and no material wholes are transferred here. [] 8]
24 UmwStG is subject to the transfer of a business, part-operation or shareholder interest into a partnership. [9] A 100 % interest in a corporation held in the company's assets shall also be regarded as a branch of activity. [10] Further prerequisites are that the contributor becomes a co-contractor or an already existing co-contractor share is increased. [11] In addition, the contribution of shares at book value or intermediate value must have taken place and be resold within seven years by the acquiring partnership. [12] For § 24 Abs. 5 UmwStG also the substitute realization facts of § 22 para. 1 p. 6 Nos. 1 to 5 UmwStG.[13] In addition, the profit from the sale of the shares at the time of the event is not in accordance with § 8b Abs. 2 KStG would have been tax-free. [] 14]
The legal consequence in the event of breach of the blocking period is that the contribution profit is taxed retroactively to the time of the contribution. It is thus taxed as if the hidden reserves had been discovered at the time of the transfer. [] 15)
This article does not replace tax or legal advice in an individual case. Facts, current law, jurisdiction, documentation and implementation remain decisive.