The division of operations is regarded as a spectre of every GmbH shareholder, as long as it is not intentionally brought about – as is sensible in some cases. Due to the division of operations, rental income (§ 21 EStG) must be reclassified into commercial income. A rental sole proprietorship with business assets is created, which excludes a tax-free sale of the properties after 10 years. The GmbH shares will also become operating assets with corresponding consequences.
On the other hand, there is the reverse division of operations, the consequences of which are usually less serious. Because here owning company is not a private person or partnership, but a corporation. It transfers essential operating principles to a partnership, usually a GbR or KG.
Principle 1: The “normal” division of operations and its consequences
In order for a “classic” division of operations to occur, two conditions must be met:
This article does not replace tax or legal advice in an individual case. Facts, current law, jurisdiction, documentation and implementation remain decisive.