date | theme

2 April 2021 | Individual companies and partnerships tax neutral according to § 6 para. 3 EStG transferred

5 April 2021 | The tax-neutral transfer of assets according to § 6 para. 5 EStG

21. October 2021 | Transformation processes in the UmwStG: Overview of various cases

28. December 2021 | Application for the de-entangling of contribution-born shares: How to reduce the tax burden!

8. September 2022 | Sachagio: contribution in kind by surcharge when founding a GmbH as a design tool (this contribution)

Companies are often to be founded on the occasion of a restructuring. For example, existing shares in a GmbH or a sole proprietorship are to be brought into the newly founded company in order to develop a holding structure. In order to save the expense of a material incorporation with material incorporation report and impairment test, shares or the sole proprietorship can be contributed within the framework of a material incorporation. We explain how this works.

1st Sachagio: What is it?

You want to bring GmbH shares or a sole proprietorship into a GmbH somehow. Then it is important that this is done in a tax-neutral manner without revealing the hidden reserves of the company or share. In principle, at least one share of the business must be reissued. However, this can be done faster and more efficiently, in an equally tax-neutral way. For this purpose, a cash foundation can be carried out with the surcharge of the contribution of a single asset, so-called Sachagio. However, a corresponding model is also conceivable in the case of a cash capital increase. Then, in addition to the cash capital increase, the contribution of the individual asset must also be agreed. The asset is then the share or the sole proprietorship.

2nd design model with Sachagio

2.1 Starting point of the design with a Sachagio

According to the case law of the Bundesfinanzhof (BFH), a contribution in kind is not necessarily necessary to use the advantages of § 20, § 21 UmwStG. A contribution in kind would be the transfer of the holding or the shares against the granting of company shares. Rather, a cash formation with the obligation to pay a premium in the form of the operation or the shares is sufficient. This enables the founder to set up the GmbH by means of a cash foundation and, in addition, to undertake in a transfer agreement to transfer his entire individual company to the GmbH. The obligation can take place under purely contractual obligations or as a corporate asset within the meaning of § 3 paragraph 2 GmbHG. Therefore, in the event of a cash start-up or increase in cash capital, the shareholder assumes the obligation, in addition to the cash contribution, to contribute a share to the limited company as a premium.

2.2. Condition for tax neutrality at Sachagio

Then the founder can submit an application pursuant to § 20 (2) sentence 2 UmwStG for the continuation of the book values. As a result, the introduction takes place in a control-neutral manner. The prerequisite for this is that the company is subsequently taxed under the KStG, the transferred liabilities are not higher than the assets and no further consideration is provided from the company assets, which amounts to more than 25 % of the book values of the transferred assets.

The contribution of the beneficiary BV must also be made in a direct reciprocal relationship with the creation and issue of new shares. Thus, there is a lack of a contribution within the meaning of § 20 UmwStG if, when establishing or increasing the capital, a payment claim on money is initially agreed without the transfer of a contribution in kind being agreed from the outset, but only later a contribution in kind is agreed and executed by offsetting the payment claim to the corporation. Therefore, the contribution should also be made in a close temporal and factual relationship with the granting of shares. In addition, in order not to blur the consideration relationship, the share premium account should be booked in the reserve according to § 272 paragraph 2 no. 1 HGB and not as another co-payment according to § 272 paragraph 2 no. 4 HGB.

2.3 Legal consequences of the application

When the application is submitted, the carrying amounts accepted shall be considered as the sale price. Less transaction costs, this usually results in a loss that can be claimed for tax purposes. The book values then form the acquisition costs at the newly founded GmbH. In accordance with Section 20(6) of the UmwStG, you can also request that the tax submission date be set on January 1 of the next year and thus one day after the cut-off date of the annual accounts. This is possible according to § 20 paragraph 6 sentence 1 UmwStG up to eight months, i.e. until the end of the month August.

2.4 Attention: Locking period

It should be noted that the shares are occupied with a blocking period of seven years from the tax transfer date (§ 22 UmwStG). Therefore, this contribution is only suitable for preparing a business sale to a limited extent. If the shares are sold within this period, the transfer process becomes retroactively taxable, so that the value of the shares is taxed depending on the time. Therefore, in the seven years following the transfer, no later than 31 January of each year: Prove to the tax office that you are still entitled to the shares in the GmbH. For this, a confirmation of the GmbH is sufficient. In addition, it makes sense to submit a current list of shareholders from the commercial register. If the obligation to provide proof is breached, the transfer is subsequently deemed to be a taxable sale operation. Therefore, urgent attention must be paid to the timely proof. In one of our other contributions, however, we explain how you can avoid the blocking period through a clever design.

2.5 Sachagio correctly agree on contract

Therefore, the contracts must be designed in such a way that a cash capital increase is decided and agreed simultaneously with the obligation to transfer the shares. In this context, it is important to include the obligation to contribute in kind in the capital increase decision. The shareholders’ meeting then decides, on the one hand, to increase the capital against cash contributions and, on the other hand, to contribute the Sachagios.

3rd Sachagio: These advantages are there

This design model has advantages. By depositing a Sachagio, you save yourself discussions with the registry judge about the value of the contribution in kind. In this way, the submission and registration process can be accelerated and made less susceptible to disputes in terms of registers. Thus, the restructuring can be carried out tax-neutrally and simply without you having to pay attention to various formalities.