In addition to the contribution of companies or subsidiaries as a group of subjects, the legislature also allows the tax-neutral contribution of co-entrepreneur shares. In addition to clarifying who is a co-entrepreneur, the question of the requirements for the co-entrepreneur share as a subject of the contribution is answered. Read here how the contribution of co-entrepreneur shares in a (new) corporation (e.g. GmbH) behaves, as well as what tax requirements must be met.

The FRL only obliges the German legislature to make it tax-neutral within the EU for companies and subsidiaries to be brought in. [55] Nevertheless, it continues the legal situation prevailing before the SEStEG to the extent that the share of the co-entrepreneur can also be the subject of the transfer under § 20 UmwStG after 13.12.2006.

1.1 Concept of co-entrepreneurship

The co-entrepreneur share is a purely tax term, so that the company share principles in force in company law cannot be readily used. In the absence of statutory codification, the concept of co-entrepreneur share is shaped by case law and is expressed by a (company) contractual connection of several or one person with others while simultaneously assuming co-entrepreneur risk and initiative[56].[57] Similarly, shares in commercial co-entrepreneurships can be subject to contributions as well as co-entrepreneurships in agriculture and forestry. Shares in partnerships that are active in asset management can only be the subject of the contribution if they are transferred in accordance with § 15 para. 3 no. 1 EStG commercially infected or according to § 15 para. 3 No. 2 EStG are commercially minted. [] 58]

1.2. The silent society as an object of contribution

The contractual relationship between two or more parties does not have to be classified as a partnership in accordance with company law. Thus, participation in a silent partnership can also be the subject of the contribution if it is atypical and thus confers a position of co-entrepreneur. [59] Whereas in company law the assets of a partnership consist exclusively of the total assets, the tax assets of the co-entrepreneurship also include the essential functional operating bases in the special assets of the contributing partner and require co-transfer. [] 60]

Just as with the operation or partial operation, no territorial conditions are attached to the co-entrepreneur share. This means that co-entrepreneurships founded and resident abroad can also be brought in pursuant to § 20 UmwStG.

A fellow entrepreneur has only one share of the fellow entrepreneur. Even the successive purchase of further shares in the company leads to the union. [61] However, it is acknowledged that for the application of § 20 UmwStG it is not necessary for the co-entrepreneur to contribute his entire share. Accordingly, a fraction of a share of the co-entrepreneur may be the subject of a contribution pursuant to § 20 UmwStG if the special assets are contributed in proportion. [] 62]