Until now, the financial administration had behaved only restrictively for the tax recognition of incongruent and disquotal profit distributions. According to the now increasing case law of the Bundesfinanzhof and the tax courts, an incongruent distribution of profits is probably generally not abusive according to § 42 AO. Even if there are no extra-tax reasons, the offence of misuse of design is now not fulfilled per se.
Change in administrative opinion: Disquotal profit distributions are now permitted at GmbH and AG
With her letter of 17. In December 2013, the financial administration recognizes the incongruent distribution of profits – in accordance with current BFH judgment – as permissible in principle. However, the prerequisite for this is the legal permissibility of the incongruent distribution of profits, which is possible in principle for German corporations – namely the GmbH and the AG.
In the opinion of the tax administration, however, an abuse of design as defined in § 42 AO can still exist in the case of incongruent distribution of profits if the disquotal distribution of profits is linked to further designs. This can be the case, for example, if the distribution of profits applies only in the short term or is repeatedly changed.
Further design models
In addition, the presentation contains further design models on similar topics.
Revenue anthems as a hidden profit distribution?
4th inflow on salary waiver by GGF
5th British Limited
Formal and material correspondence in the KStG
This article does not replace tax or legal advice in an individual case. Facts, current law, jurisdiction, documentation and implementation remain decisive.