date | theme
07. November 2018 | Exit taxation the valuation of GmbH shares
10. November 2018 | Exit tax according to § 6 AStG: Remission & deferral in special cases (this contribution)
12. November 2018 | Exit taxation (§ 6 AStG) at GmbH shareholders
20. May 2019 | Exit taxation: calculation – deferral – waiver – avoidance
Note: this is a contribution according to old legal situation! Our contribution 2022 comes the new exit tax – what changes does it bring?
When GmbH shareholders move abroad, the tax office sets the exit tax according to § 6 AStG. We had already informed about the taxation of departures, the calculation of the tax and strategies for reducing it. With the 2004 ECJ decision on the French exit tax, the regulation was adapted and now offers taxpayers the opportunity to leave the exit tax hours. In some cases, the partial remission of the tax is even possible.
Here we explain to you when the exit tax applies, how you save it and what else is important to consider.
General information about the Exit Tax
If a GmbH shareholder moves abroad, the two double taxation agreements of the Federal Republic of Germany revoke the taxation right for a later sale of the GmbH shares. The legislature therefore assumes a fictitious sale of the GmbH share of the relocated shareholder at the time of departure.
Due to the case law of the European Court of Justice, the regulation has now been somewhat restricted and adapted accordingly.
2. deferral of the exit tax
2.1. setting of the tax (= calculation of the tax)
When the GmbH shareholder moves away, the tax office may continue to set the tax as if there had been an actual sale of the GmbH share. For this purpose, the so-called common value or market value is regarded as fictitious sales proceeds. After deduction of the cost of the shareholding, which normally corresponds to the share capital, the taxable gain on the sale is obtained.
2.2 Subsequently: deferral of the exit tax
By the ECJ case law, the tax must now be deferred interest-free, indefinitely and without security. This is usually done ex officio, i.e. without the involvement of the taxpayer. The request for deferral may nevertheless be made for reasons of absolute security.
2.3. Annual obligation to provide proof
In order to use the deferral, the taxpayer must provide annual proof to the tax office that the share in the GmbH is still his property and that he is still resident in a member state of the European Union. The interest-free deferral is valid until one of the following events occurs:
This article does not replace tax or legal advice in an individual case. Facts, current law, jurisdiction, documentation and implementation remain decisive.