Sale price received (income within the meaning of § 8 EStG) | (+) EUR 500,000

Of these, according to § 3 no. 40 letter c EStG 40% are tax-free | (-) EUR 200,000

Less disposal costs (notary, lawyer, tax consultant, etc.) | (-) EUR 1,000

Of this also 40 % is not deductible (§ 3c paragraph 2 sentence 1 EStG) | (+) EUR 400

Less acquisition costs according to § 17 paragraph 2a EStG, here

EUR 25.000 share capital and

EUR 50,000 through a hidden deposit a few years ago | (-) EUR 75,000

Of which 40 % is not deductible due to § 3c paragraph 2 EStG | (+) EUR 30,000

Capital gain according to § 17 paragraph 2 EStG | EUR 254,400

Less allowance (§ 17 paragraph 3 EStG), in principle up to EUR 9.060, but completely melted here | (-) EUR 0.00

Profit subject to personal tax rate | EUR 254,400

When a limited liability company or a share in it is sold, either a gain on sale or a loss on sale arises from the seller. However, without a contractual agreement, the question of how to deal with current losses up to the disposal date remains unresolved. A supplementary clause for the distribution of current losses in accordance with the principle of pro rata temporis is usually appropriate here.

The sale of a corporation (GmbH, UG, AG) or a corresponding share is one of the most common notarized transactions. It causes a complete transfer of ownership and the risks associated with it from the seller to the buyer. At the same time, the buyer continues the business of the GmbH, makes profits and taxes them with corporate and business tax.

However, a GmbH sale is always problematic if the company has made negative ongoing losses so far or at least in the year of the sale. Because in the transfer of ownership during the current year, the losses would burden the buyer of the shares, even though the latter did not contribute to their creation. Only if the end of the marketing year also corresponds to the sale date (effectiveness of the notary contract), there is a fair distribution of the current losses.

A corresponding problem arises with current profits for the seller. For example, this has generated profits until 01.05.2023 (sale date), but since the marketing year ends only on 31.12.2023, the economic property is already with the buyer. He is initially entitled to all profits – understandable that the seller will hereby and especially in the case of high profits regularly not agree.

Before we take a look at a tax and civil law optimized approach, we look at three important terms from tax law in this context: