06.07.2020 | Locking periods in conversion tax law – contribution in kind and exchange of shares
08.07.2020 | Locking periods for merger and change of form in GmbH & Co. KG: § 6 UmwStG
10.07.2020 | Tax neutral division: What period of suspension applies in the event of 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(this contribution)
16.07.2020 | 7 years blocking period when entering GmbH: § 24 Abs. 5 UmwStG
The transfer of shares to a GmbH or Cooperative can acc. § 21 Abs. 1 S. 2 UmwStG at book value. Also the contribution of enterprises, branches or co-entrepreneur shares in accordance with § 20 para. 2 S. 2 UmwStG with associated shares in a corporation can be tax-neutral. In order to prevent a later tax burden on the acquiring company, the blocking period according to § 22 para 2 p. 1 UmwStG must be observed.
In § 22 para. 2 UmwStG regulates the sale of the transferred shares by the acquiring company or an equivalent event, in the case of contribution in kind or exchange of shares at book or intermediate values. However, only insofar as there is no possible advantage according to § 8b Abs. 2 KStG. [1]
As in para 1 there is also in para. 2 a blocking period of seven years after the date of the event. If shares are sold within this time period, the contribution profit is taxed retroactively. [2] However, there is a transfer gain II at the transferee. This results from the difference between the common value of the transferred shares at the time of the transfer and the recognition of the transferor’s shares received (less of the transfer costs). The contribution profit II is subsequently recognised in the cost of the shares in the acquiring company at the contributor. [3] The reference in sentence 6 to para 22 para 1 p. 6 also gives rise to the legal consequences if the substitutes are fulfilled. [] 4]
2nd Conclusion
As a result, § 22 Abs. 2 UmwStG, as soon as shares in a limited company are recognised in a transfer below the common value. A sale of the shares before the expiry of the blocking period has the consequence that all hidden reserves are discovered and tax advantages such as the allowance acc. § 16 Abs. 4 EStG do not apply.
This article does not replace tax or legal advice in an individual case. Facts, current law, jurisdiction, documentation and implementation remain decisive.