The division of operations in tax law brings more tax disadvantages than advantages. In doing so, it develops its effects especially for the GmbH shareholder. Because he has as owner entrepreneur commercial income, which is subject to the trade tax. Once the prerequisites have been met, the division of operations can be ended only with difficulty and almost never tax-neutrally. Therefore, it is particularly important to develop a strategy in advance in order to avoid the division of operations.
In the video we show you various strategies to avoid a division of operations in advance, as well as in retrospect or to consciously maintain it.
1. Conditions for splitting operations
1.1 Objective interconnections
On the one hand, there must be a so-called factual connection. This factual interconnection arises if an essential operating basis is left to the GmbH. An essential operating basis is characterized by the fact that it is particularly important for the business operations of the GmbH. As early as 1974, the Bundesfinanzhof decided that a specially designed factory building is such an essential operating basis. Since 2000, office buildings and administrative buildings have also been covered. And since 2006, office space in the shareholder’s single-family house can also constitute such an essential operating basis (BFH of 13.7.2006 – IV R 25/05).
As a result, inter alia, the following assets may have a material connection:
This article does not replace tax or legal advice in an individual case. Facts, current law, jurisdiction, documentation and implementation remain decisive.