date | theme
25. April 2017 | Use loss carry forward in the GmbH purchase
23. August 2018 | GmbH loss carry forwards: § 8c KStG unconstitutional -> objection & deadline
11. November 2018 | Save the loss carry forwards at the GmbH: the new § 8d KStG helps! (this contribution)
17. February 2019 | Buy loss carryforwards from GmbH: 6 new strategies for the use of losses
09. May 2019 | Continuation-related loss carry forward according to § 8d KStG
When selling a GmbH, §8c KStG often causes the loss of accumulated loss carry forwards. The losses are then no longer usable for tax purposes. In this regard, we have already explained how you object to § 8c (1) sentence 1 KStG (loss loss 25% to 50%) for unconstitutionality and how the chances of success in carrying forward losses are at the Finanzgericht and BFH. In this article, we show you how you can use the loss carry forwards in the GmbH sale additionally with the new § 8d KStG. This is only possible taking into account certain aspects that are intended to ensure the preservation of the acquired GmbH. After all, the aim of the law is to avoid using loss carry-forwards outside the original context. So if you pay attention to these points, then the acquired loss carry forwards can still save.
When planning the succession of an entrepreneur, the sale of the GmbH is often considered. In the past, loss carry forwards in society often represent an obstacle. This is because, according to the legal consequence of §8c KStG, these will be lost proportionally if a share of more than 25 % of the GmbH is sold (harmful share acquisition). And if you sell 50% (harmful share acquisition) or more, all loss carry forwards expire. As a result, the losses that would have had a tax-reducing effect in the following years were tax-deducted.
2. avoiding loss carry forward – § 8d KStG
In order to remedy the taxpayer from the legal consequences of §8c KStG, §8d KStG was introduced. In the case of a harmful share acquisition, there is no loss loss when § 8d KStG is applied. For this purpose, the taxable person must submit an application. As a result, the losses are then reclassified into so-called continuation-bound loss carry forwards. Now the receipt of the loss carry forward depends on whether the acquirer continues the business operations of the GmbH unchanged in some key aspects.
3. prerequisites for maintaining losses by means of continued loss carry forward
If taxpayers choose to apply the continuation-related loss carry forward, they are subject to the restrictions of the provision. Because the receipt of the losses, as already indicated, is linked to some conditions:
This article does not replace tax or legal advice in an individual case. Facts, current law, jurisdiction, documentation and implementation remain decisive.