From 2024, a GbR can threaten an operating split. This is due to the extensive legislative changes introduced by the MoPeG for the reform of partnership law. Especially the company civil law, i.e. GbR for short, is affected by these changes. Nevertheless, even after the beginning of 2024, the GbR can be used to lease private properties to one’s own GmbH without operating splits. For this, it is only necessary to stipulate in the GbR Social Contract that the decision-making in the GbR can only be made unanimously. Because this legal trick ensures that no personal connection arises. Indeed, the interconnectedness of staff is one of two criteria which characterise a division of operations.

1st Risk Division at GbR from 2024 – Introduction

An operating split occurs when a GmbH shareholder transfers assets from his private assets to his GmbH. It does not matter whether the transfer is made free of charge or free of charge. At the latest when either the transferred assets or the GmbH shareholding are sold, the hidden reserves are discovered, which then also include the assets actually held privately. Since the valuation according to the valuation law is decisive, the taxation is usually very high. This is especially true if you as a shareholder of your own GmbH transfer private real estate.

This is why many tax consultants have applied a design model in the past, in which the personal connection given by private property is eliminated. This is because human resources are one of two criteria that justify a division of operations. For example, in the GbR you have a GmbH shareholder who, for example, contributes his private property leased to his GmbH, and at least one other GbR shareholder (for example children, spouses, close relatives) who does not own any property.

As I said, so far this model has ensured that there is no division of operations. But from 2024, the GbR threatens once again the Damocles sword of operation split. What happened?

2nd MoPeG: legal changes at the GbR from 2024

In recent years, the legislature has revised corporate tax law with the KöMoG. But partnership law also required reform in parts. Therefore, the legislature also adopted the MoPeG. Behind this abbreviation for the typically amtsdeutsche word partnership law modernization law is a whole bundle of changes, which include in particular the BGB and the HGB and on which we have already reported. Much of this affects the GbR, as it is subject to extensive adaptations in its properties that strengthen it.

However, this also has some legal consequences, which also include tax consequences. This is also the case with regard to the possibilities of a GbR when avoiding an operating split. Since the new legal situation is to apply from 2024, the GbR threatens an operating split soon.

Why does the GbR threaten a division of operations from 2024?

The reason why a GbR was so far an ideal company for GmbH shareholders to position their privately held and leased properties to their GmbH was on the one hand because the property could be sold tax-free after a speculative period of ten years.

With regard to avoiding the division of operations in a GbR, the reason lies on the other hand in the previous regulation of §§ 705 BGB. This is because the principle of unanimity is prescribed in the management of the GbR (§ 709 paragraph 1 BGB). No matter how many shares each GbR shareholder holds in the company, all shareholders must agree to a business decision. Even in the often used tax design models, in which GmbH shareholders who contribute their property are involved with 99% or more in the GbR, the votes of the other GbR shareholders count. The principle of voting per capita applies to the GbR in this respect: every shareholder has a voting right.

So far, it has been impossible for the GmbH shareholder to enforce his will in the GbR alone. But exactly this principle is eliminated by the MoPeG from 2024. From then on, BGB is to ensure that the voting rights in a GbR are measured according to the number of shares. In the above example, the GmbH shareholder would receive 99% of the voting rights. And since the unanimity principle will also be abolished from 2024, the GmbH shareholder would be able to decide solely on the property in the GbR from 2024, so that a personal connection arises and the division of operations suddenly takes place.

4. How can the GbR be protected from a business split from 2024 onwards?

If you, like many of our clients, also use a GbR in this function to avoid a division of operations, then you should become active before 2024. First of all, you should look into the articles of association of your GbR, whether there are provisions for determining the voting shares and the management that deviate from the BGB principle. If this is the case, so that the unanimity principle does not apply, it is very likely that there is already an operating split. In this case, you should take measures with your tax consultant to get out of the danger zone of business division. Or you contact us, because we also know means to achieve this.

If no deviating provisions are stipulated in your GbR social contract, check whether it explicitly stipulates the decision-making by unanimity principle. If this is the case, your GbR is probably protected from a business split from 2024 onwards. Otherwise, you should adjust the GbR-Gesellschaftsvertrag in this regard soon before the end of the year. Please note that the unanimity principle in your GbR is an integral part of the decision-making process, so that this is valid after 2023.

5th division of operations at GbR from 2024 – Conclusion

The MoPeG introduces a variety of changes, with a focus on the GbR. The legislature has, presumably unconsciously, created conditions that can lead to a division of operations in an existing GbR or a new GbR built from 2024 onwards. However, this can be avoided relatively easily. In this respect, it is therefore important to become aware of the effects of the new legislation. Hopefully we have contributed to this with this article.