para. | paragraph

AG | Aktiengesellschaft

AktG | Aktiengesetz

AO | Tax Code

Art. | Article

BB | Magazine: Company consultants

BFH | Bundesfinanzhof

BFH/NV | Collection of decisions of the Bundesfinanzhof (BFH), which are not published in the official collection of the BFH

BMF | Federal Ministry of Finance

BStBl | Bundessteuerblatt

BT printed matter | Bundestag printed matter

or | or

i.e. | that is

DB | Magazine: The holding shall:

DStR | Magazine: German Tax Law

EFG | Journal: Decisions of the Finance Courts

EStG | Income Tax Act

EStH | official income tax manual

f. | following

ff. | following

FG | Finance Court

FR | Magazine: FinanzRundschau

gem. | according to

GmbH | Company with limited liability

GmbHG | Law concerning limited liability companies

GmbH-StB | Zeitschrift: GmbH- Steuerberater

GrS | Grand Senate

HGB | Commercial Code

i. S. d. | in the sense of

i. V. m. | in conjunction with

IStR | Journal: International Tax Law

KGaA | limited partnership on shares

KStG | Corporate Tax Act

No | Number

NWB | NWB Verlag GmbH & Co. KG

paragraph | recital

SE | Societas Europaea

SE Regulation | SE Regulation

SteuerStud | Magazine: Tax and Study

SteuK | Magazine: Tax Law

StuB | Magazine: NWB Corporate taxes and balance sheets

Tz. | Text number

u. U. | Under certain circumstances

UmwStG | Conversion Tax Act

see | compare

VZ | assessment period

WPg | Magazine: The Audit

e.g. | for example

Binnewies, Burkhard | Liability case “Deposit account according to § 27 KStG” – identifying and avoiding stumbling blocks in practice, GmbH-StB 1/2013, 22-26 (quoted: Binnewies, GmbH-StB 2013, page)

Boorberg, Wolfgang | The transformation of a partnership into a corporation or cooperative and the tax deposit account, DStR 33-34/2017, 1801-1805 (quoted: Boorberg, DStR 2017, page)

Bott, Harald/ Walter,

Endert, Volker | Direct access to the deposit account when liabilities resume?, DStR 18/2016, 1009-1014 (quoted: Endert, DStR 2016, page)

Erler, Bernd/ Sauter

Thomas | Corporate Income Tax Law The taxation of the corporation and its shareholders 3rd edition, Munich, 2020 (quoted: E/S, processor, KStG, §, paragraph)

Dötsch, Ewald/Pung,

Alexandra/Möhlenbrock,

Rolf | The Corporate Tax, 104. Edition, Stuttgart, 2021

(quoted: D/P/M, processor, KStG, §, paragraph)

frogs, gerrites/drums,

Klaus-Dieter | Commentary on the Corporate, Commercial and Conversion Tax Act, 161. Edition, Freiburg, November 2021 (quoted: F/D, Bearbeiter, KStG, §, paragraph)

Gosch, Dietmar | comment Corporate Tax Act, 4th edition, Munich, 2020 (quoted: Gosch, processor, KStG, §, paragraph)

Groß, Frank | The tax deposit account – § 27 KStG, SteuK 4/2013, 67-70 (quoted: Groß, SteuK 2013, page)

Hageböke, Jens | Again: On the competence of the Federal Central Office for Taxation in the case of cross-border capital reductions of EU corporations according to § 27 para. 8 KStG, IStR 19/2010, 715-717 (quoted: Hageböke, IStR 2010, page)

Herrmann, Carl/Heuer,

Gerhard/Raupach

Kirchner, Hildebert | List of abbreviations of the legal language, 10th edition, Berlin, 2021

de Man, Annett | Tax Deposit Account according to § 27 KStG, Basics of 03.10.2016, NWB EAAAF-82078 (quoted: de Man, NWB EAAAF-82078, paragraph)

Mössner, Jörg Manfred/

Oellerich, Ingo/Valta

Matthias | Corporate Tax Act Comment Online, as of 22.09.2021, Herne (quoted: M/O/V, Bearbeiter, KStG, §, paragraph)

Mössner, Jörg Manfred/

Seeger, Siegbert/

Oellerich, Ingo | Corporate Tax Act Commentary, 4. Edition, Herne, as of May 2021 (quoted: M/S/O, Bearbeiter, KStG, §, paragraph)

Neyer, Wolfgang | Fixed use according to § 27 Abs. 5 KStG: Tax trap also for cases of hidden profit distribution? BB 51-52/2017, 3036-3040

(quoted: Neyer, BB 2017, page)

Oppel, Florian | Tax Deposit Account according to § 27 KStG, SteuerStud Nr. 7 of 25.06.2020, 457-467 (quoted: Oppel, SteuerStud 2020, page)

Ott, Hans | Current developments in the tax deposit account according to § 27 KStG, StuB 08/2018, 273-280

(quoted: Ott, StuB 2018, page)

Rödder, Thomas/

Herlinghaus, Andreas/

Schell, Matthias/ Philipp,

Moritz | Tax deposit account and hidden profit distribution in the Group, DStR 43/2019, 2225-2230 (quoted: Schell/Philipp, DStR 2019, page)

Schnitger, Arne/

Fehrenbacher, Oliver | comment Corporate Tax Act, 2nd edition, Wiesbaden, 2018 (quoted: S/F, Bearbeiter, KStG, §, paragraph)

Schönwald, Stefan | The development of the tax deposit account, SteuerStud No. 7 of 01.07.2006, 346-351 (quoted: Schönwald, SteuerStud 2006, page)

Streck, Michael | Commentary Corporate Tax Act, 10. Edition, Munich, 2022 (quoted: Streck, Bearbeiter, KStG, §, paragraph)

Voßkuhl, Stefan/klemke,

Sina | Priority of the assessment procedure over the deduction procedure, DB 40/2012, 2248-2250 (quoted: Voßkuhle/Klemke, DB 2012, page)

In addition to the contributions made by shareholders of corporations to their share capital, they may also make further contributions to their company. The tax deposit account records such voluntary additional deposits. This is relevant for the shareholders insofar as payments from the tax deposit account are tax-free. However, there are some special features to consider that are important for practice. Thus, there is a certain order of the types of amounts, whereby taxable profits are first paid out before the tax-free payment of the deposits is made.

For shareholders of a corporation, the question arises as to how they can legally securely withdraw deposits that they have made to a corporation from that corporation without having to tax them as a distribution of profits. The tax deposit account within the meaning of § 27 KStG provides the legal basis for this. It is important to document the inflows and outflows of deposits and services precisely in order to be able to make legally non-taxable withdrawals from the deposit account.

The present work deals with the purpose and scope of the tax deposit account, representing the components from which the tax deposit account is calculated. Using an example, the order of use and the calculation are presented.

In the second part, the work discusses the legal consequences arising from the tax deposit account for the company and the shareholders.

Another focus is on the determination procedure and possible errors and consequences that may result from uncertified or incorrectly certified statements for the company and the shareholders.

Transitional provisions to the old legal situation before the introduction of § 27 KStG (as of 01.01.2001) are not discussed, nor are special organic regulations.

The tax deposit account is regulated in § 27 KStG and constitutes a special – purely tax – an account which is to be kept outside the bookkeeping in the context of an ancillary tax calculation by the corporation and which shows and develops deposits not paid into the nominal capital of a corporation and documents the use of these deposits for corporate services.

The tax deposit account is an instrument to distinguish, at the level of the shareholder of a limited liability company, the non-taxable refund of deposits from generally taxable profit distributions. [2] The legislature thus aims to ensure that repayments of deposits not made into the nominal capital are not taxed as income from capital assets. [3] Consequently, § 27 KStG corresponds to the provision of § 20 para. 1 no. 1 sentence 3 EStG, according to which emoluments do not form part of income from capital assets, insofar as they come from distributions of a corporation, for the amounts from the tax deposit account according to

§ 27 KStG shall be deemed to be used. The basic idea here is that the endowment of a corporation with equity capital is a process under company law which does not affect the taxable sphere and the determination of profits of the company, since the increase in the corporation capital is not due to the economic activity of the company. [4] The restitution of such deposits thus constitutes a restitution of the assets transferred and not the payment of a remuneration to the shareholders.

§ 27 Abs. 1 sentence 1 KStG stipulates that the tax deposit account of all unlimited taxable companies within the meaning of § 1 para. 1 no. 1 KStG, which have their management or registered office in Germany, is to be led. § 27 para 7 KStG extends the personal scope of the provision to other unlimited taxable entities and associations of persons. The prerequisite for this is that these, services within the meaning of § 20 Abs. 1 no. 1, 9 or 10 EStG. In particular, cooperatives and European cooperatives (§ 1 para.) 1 No. 2 KStG)[5], mutual insurance associations and economic associations[6], but also ideal associations not exempted from corporation tax[7], and enterprises of a commercial nature not exempted from corporation tax of legal persons under public law according to § 4 KStG with their own legal personality[8]. Furthermore, foreign corporations and associations of persons are included which, according to the type comparison, are a corporate tax entity according to § 1 para. 1 No. 1 KStG (direct application of § 27 para 1 KStG) or according to § 1 para. 1 no. 2 to 6 KStG (application of § 27 para 7 KStG). [9] Limited taxable entities are excluded from the provisions of § 27 KStG[10], so that their shareholders have to pay tax on all services provided by these entities as income from capital assets.

The tax equity of a corporation can in principle be divided into three categories:

– Subscribed capital (nominal capital),

– Deposits not paid into nominal capital (e.g. hidden deposits),

– Other equity (especially accumulated profits).

Deposits in the nominal capital of a corporation are excluded.

In particular, these are:

– In the case of a GmbH, contributions to the share capital pursuant to § 5 Abs. 1 GmbHG,

– in the case of an AG, deposits in the share capital acc. § 6 AktG,

– in the case of a KGaA deposits in the share capital acc. § 278 para 3 and § 6 AktG,

– in the case of a European company (SE) deposits in the share capital of the SE acc. Art. 4 para 1 SE-VO, Art. 5 SE-VO in V. m. § 6 AktG and

– in the case of foreign corporations, deposits in the capital to be registered under the corresponding law.

Characteristic of the nominal capital is that it must be entered in the competent registers and statutes and therefore must be clearly defined at all times and determined according to the amount.

The closing stock of the tax deposit account is determined from the opening stock, or the value of the continuing deposit account plus the additions to the deposit account and less the benefits from the tax deposit account. The reference date for the relevant identification of the tax deposit account shall be the end of each marketing year. According to § 27 Abs. 1 sentence 4 KStG shows the tax deposit account at least an amount of 0 euros and can not become negative through services of the company.

1. Opening stock and continuation of tax deposit account

Basically, the starting point for the determination of the tax deposit account acc. Section 27 para. 2 sentence 1 KStG the separately determined stock of the tax deposit account at the end of the preceding marketing year. In the case of newly created entities, the capital shown in the opening balance sheet, in so far as it exceeds the nominal capital, shall be recorded as access to the closing stock of the deposit account at the end of the first marketing year. [] 15)

Uncertainties arise with regard to the determination of the initial stock of the tax deposit account, if already existing companies fall under the provisions of § 27 KStG, whether by the occurrence of unlimited tax liability or influx of a foreign capital company. Section 27 para. 2 sentence 3 KStG, that the determination of the existing stock of the deposits not paid into the nominal capital at the time of entry into unlimited tax liability is regarded as an initial stock at the end of the preceding marketing year and thus that deposits are already available for tax-free distributions before or at the beginning of unlimited tax liability[16], however, this will lead to problems in practice. From the point of view of the author, it becomes u. It may be difficult to retroactively reconstruct an account that has not previously been maintained for the company in order to record the correct initial stock of the tax deposit account.

Valuation is even more difficult for foreign corporations. Until the assessment period (VZ) 2005, the tax administration considered that the initial stock should in principle be set at zero. [17] Concerns within the framework of the fundamental freedoms of EU law, which saw it as a deterioration compared to the limited taxable entities[18], led to a change in administrative opinion from FZ 2006 onwards. According to the newly introduced § 27 para 2 sentence 3 KStG, deposits made abroad and still existing can also be taken into account when establishing the deposit account for the first time. [19] It is the opinion of Winkeljohann and Fuhrmann, who argue that this scheme entails significant hurdles since, in addition to the difficulty of subsequently recording the tax deposit account, the question remains unclear whether the relevant values for the tax deposit account are to be determined according to German profit determination principles in the respective version applicable to the corresponding VZ. [] 20]

2. Receipts at the tax deposit account

The increase in the stock of the tax deposit account is possible through open and hidden deposits. The concept of deposits within the meaning of § 27 KStG is to be understood in the sense of the concept of deposits in the tax sense[21] and is consequently not based on the commercial terminology of § 272 HGB. As deposits in the tax sense, in particular:

– The amounts specified in § 272 para 2 HGB to be shown in the capital reserve – in particular No. 1 (gio), No. 2 (upfronts), No. 3 (co-payments in the case of preferred shares) and No. 4 (e.g. variation margin).

– waiver of valuable shareholder loans. [] 22]

– Entrance fees to cooperatives. [] 23]

– contribution of profit participation capital within the meaning of § 20 para. 1 No. 1 EStG.

– Commercial income grants.

– Repayments of a hidden profit distribution.

– The part of the equity to be recorded that is not attributable to nominal capital in cases of transfers within the meaning of §§ 20, 21 UmwStG.[24]

– Concealed deposits within the meaning of § 8 para. 3 sentence 3 KStG.

The valuation of the deposit takes place in principle according to m. § 6 Abs. 1 no. 5 EStG with the subvalue. [] 25]

3. Benefits from the tax deposit account

According to § 27 para. 1 sentence 3 KStG reduce the benefits of the corporation tax deposit account only to the extent that they exceed the distributable profit determined at the end of the preceding marketing year. In doing so, the law provides a clear order of use for determining these deposit guarantees.

a) Order of use under deposit refunds

The order of use according to § 27 para. 1 sentence 3 KStG in the context of deposit refunds can be summarized in the following formula: [] 26]

Benefits of a limited liability company in the marketing year concerned

– Repayment of nominal capital in accordance with § 28 para. 2 sentence 2 and 3 KStG

– Distributable profit at the end of the previous marketing year

= amount of insert return rifle

Access to the tax deposit account is only possible if it shows a positive status. The account can be provided by services according to § 27 Abs. 1 sentence 4 KStG do not become negative. The following consequences can be summarised from the tax deposit account order of use:[27]

– Benefits of the corporation to its shareholders are to be financed primarily from the distributable profit.

– Distributions from the tax deposit account are attributable to the shareholders in proportion to their participation in the company.

– An exception to the order of use of § 27 Abs. Section 27(2) of the KStG provides for the repayment of nominal capital in the event of a capital reduction or dissolution.

Direct access to the tax deposit account, i.e. that the deposit account is reduced without regard to the distributable profit, is only possible if this is permitted by law. A permissible direct access is therefore only for repayment of nominal capital within the meaning of § 28 Abs. 2 sentence 2 KStG as well as in the case of more or less removals caused in organic time within the meaning of § 27 para. 6 KStG. The literature discusses whether the resurgence of a liability after a waiver of the shareholder on the basis of a warrant leads to direct access. With regard to the old legal situation and the decision of the BFH[28], Lornsen-Veit and Behrendt[29] take the view that there is no distribution, no performance within the meaning of § 27 KStG and thus the better case should continue to be treated as a direct reduction of the deposit account, through which the deposit account could also become negative. From the point of view of the author, Enderts[30] is of the opinion to follow, for which direct access is not (any longer) considered due to lack of an express legal order.

b) Definition of the term “performance”

The services within the meaning of § 27 para. 1 sentence 3 KStG are defined as all payments caused by the company relationship, in particular open and hidden profit distributions, pre-distributions and other services. When assessing the performance, it depends exclusively on the assessment under German tax law.[32] For the offsetting with the tax deposit account, all performances of a marketing year must be summarized.[33] The decisive factor here is the timing of the outflow of funds. While the other variables (stock of tax deposit account, distributable profit) are aimed at the stock at the end of the previous marketing year, the concept of benefits is based on the outflow in the current marketing year.

c) Distributable profit

The distributable profit within the meaning of § 27 para. 1 sentence 5 KStG is a fictitious size and can be represented as the following formula:[34]

equity according to tax balance

– subscribed capital

– Stock of tax deposit account

= Distributable profit within the meaning of § 27 para. 1 sentence 5 KStG

The starting point is not the commercial equity, but the correct tax equity according to the tax balance, even if the latter is faulty. [35] The nominal amount of the subscribed capital (cf. B. III.) must then be deducted, regardless of whether it has been paid up in full or not.[36] After deduction of the stock of the tax deposit account, the profit to be distributed is at least zero euro. [37]

The identification and use of the tax deposit account is illustrated by the following example:

The balance sheet of A-GmbH shows the following values as of 31.12.2020:

The tax deposit account shows an amount of 350,000 euros as of 31 December 2020.

The distributable profit according to § 27 para. 1 sentence 5 KStG is calculated as follows:

Thus, of the 600,000 euros paid out to the shareholders in 2021, a total of 350,000 euros are non-taxable repayments from the tax deposit account and 250,000 euros taxable profit distributions.

Legal consequences arise both for the entity providing the services and for the recipients of the services. For the recipient, these are dependent on the tax assessment of his shares.

For the corporation § 27 para. 1 sentence 1 KStG merely indicates that the deposits not paid into the nominal capital are to be shown at the end of the marketing year in a special account – the tax deposit account. As a purely tax account, this regularly does not correspond to the capital reserve shown in the trade balance acc. § 272 Abs. 2 HGB are in agreement.[38] The account is maintained as a company account and not separately for each shareholder. It follows that shareholder deposits entered in the tax deposit account are no longer attributable to the shareholders who made the deposits. [39] As a result, it can happen that deposits come from one shareholder, but the repayment later flows to other shareholders.[40] It is the opinion of Schnitger and Nordmeyers, who do not see this as generating tax advantages. Insofar as the distributions exceed the book value or the acquisition costs of the shareholder, there is taxation due to the inflow. [41]

If a shareholder makes contributions to a corporation which do not constitute nominal capital, the expenses at the level of the shareholder are those which increase the value of the shares[42] and thus lead to (increased) acquisition costs. If these deposits are returned, this is a non-taxable deposit refund. Such deposits shall be documented through the tax deposit account. Depending on how the participation in the limited liability company is attributable to income at the level of the shareholder, different legal consequences result.

1. shares within the meaning of § 17 EStG in the private assets of natural persons

If the shareholder is a natural person who holds the shares in the corporation in private assets and the other conditions of § 17 EStG are fulfilled (e.g. participation ratio), the deposit guarantee leads to a proceeds of sale within the meaning of § 17 para. 4 sentence 1 EStG. Since the cost of these proceeds is initially to be deducted, no taxable profit will result up to the cost of the proceeds. If the deposit guarantee exceeds the acquisition costs, this leads to a taxable profit, on which, however, the partial income procedure according to m. Section 3 No. 40(c), second sentence of the EStG is applicable and is therefore subject to 60 % taxation.

2. shares outside § 17 EStG in the private assets of natural persons

If the shareholder is a natural person who holds the shares in private assets and does not meet the requirements of § 17 EStG, the deposit reinstatement is neither proceeds of sale within the meaning of § 17 EStG nor capital income within the meaning of § 20 EStG. Applicable is § 20 Abs. 3 EStG the repayment of deposits from the tax deposit account as an extension of the basic case of repayment of nominal capital (§ 20 para.). 1 no. 2 EStG)[44] excluded from income from capital assets. Binnewies is to agree, which also then – in reverse conclusion from § 17 Abs. 4 sentence 1 EStG and in relation to § 20 para. 2 No. 1 and para. 4 EStG – does not accept a capital gain if the amount of the repayment exceeds the acquisition costs of the shares. [] 45

3. shares in the assets of a natural person

If the shares in the corporation are part of the operating assets of a natural person or a co-entrepreneurship, the deposit guarantee also reduces the cost of the participation. If the deposit guarantee exceeds the acquisition costs, there is a taxable profit in the amount of the surplus, which is subject to the partial income procedure in accordance with § 3 No. 40 a EStG and is therefore taxable at 60 %. [46] The income is not subject to § 20 Abs. 1 no. 1 sentence 3 EStG, but the subsidiarity principle of § 20 para. 8 EStG and are to be assigned to the respective profit income type.

4. shares in the assets of a corporation

If the shares belong to the operating assets of a corporation, the repayments from the tax deposit account initially reduce the acquisition costs of the shares.[47] Different views prevail in the financial administration and literature on the legal consequences of statements that exceed the acquisition costs of the shares. Lornsen-Veit applies § 8b para. 1 KStG for possible and thus the tax exemption of the statements. This opinion is not only to be rejected from the point of view of the BFH[48], since the returns from the tax deposit account are not income from § 20 para. 1, 2, 9 or 10 letter a EStG.

Both the tax administration[49] and Antweiler[50] see a capital gain in the amount of the excess, on § 8b para. 2 KStG and thus a 95 % tax exemption must be applied. However, § 8b Abs. 2 KStG is neither an explicit mention of this fact nor is the distribution from the tax deposit account a sale of a share in a corporation[51]. Although the application of § 8b KStG is approved by the tax administration,[52] there is no legal provision, the introduction of which would be desirable by the legislature.

It is therefore currently the opinion of Bauschatz that neither an application of § 8b para. 1 KStG still § 8b para. 2 KStG, but a full tax liability of the excess amount in the receiving corporation, even if this leads to an unsatisfactory result. [] 53

The determined stock of the tax deposit account is in accordance with § 27 para. 2 sentence 1 KStG to be determined separately at the end of each marketing year. A determination is necessary even if there has been no change in the stock of the tax deposit account.[54] And even if the tax deposit account has a zero stock.[55] The determination is made after a declaration for the separate determination of the tax bases is made by a determination decision in accordance with §§ 179 ff.

For the taxation of the shareholder, the decision on the separate establishment of the tax deposit account is not a basic decision.[56] However, since § 20 para 1 no. 1 sentence 3 EStG is linked to distributions for which equity capital within the meaning of § 27 KStG is deemed to be used, the decision on the determination of the tax liability also has material legal binding effect for the shareholder. [] 57]

According to § 27 para. 3 KStG, the performing limited liability company is obliged to draw up a certificate of receipt of the services according to the officially prescribed model for the shareholders. This must include, in addition to the name and address of the shareholder, the amount of benefits from the tax deposit account and the payday. Although this certificate does not constitute a material binding effect for the taxation of shareholders[58], it constitutes evidence within the meaning of § 92 para. 1AO. [] 59]

It is not regulated by law at which time the certificate is to be issued. However, in view of the consequences of a certificate which has not been drawn up or which has been drawn up incorrectly, it is advisable to draw up the certificate after the end of the marketing year, provided that all the services provided during the marketing year are clear. However, the certificate must be issued until the day of the announcement of the first establishment of the deposit account, otherwise § 27 para. 5 sentence 2 KStG a zero certificate is deemed to be a fiction. If a certificate is too low, too high or not produced, this can have significant consequences for the evaluation of performance.

If a zero certificate is fictitious due to the above-mentioned fiction if a certificate is not issued, or the use of the tax deposit account is shown too low in a certificate, then § 27 para. 5 sentence 1 KStG the application. This has the consequence that the limited liability company only reduces the tax deposit account in the amount of the certified amount and that the shareholder has a non-taxable deposit refund only in the amount of this amount, while the excess amount is a taxable profit distribution. [60] According to § 27 para. 5 sentence 3 KStG a correction of the too low certificate is excluded. These rules apply both to incorrectly produced certificates from the outset and to situations in which, for example, a different distributable profit and thus a different order of use result during an external inspection. [] 61]

Due to these statutory regulations, the subsequent discovery of a hidden distribution of profits leads to the departure from the tax deposit account being determined at zero[62] and thus to a taxable distribution of profits.

Even if a certificate has been drawn up incorrectly too low, the tax deposit account of the corporation will be reduced only by the certified amount and not by the "correct" amount (deduction from § 27 para 5 sentence 6 KStG). This results in a materially incorrect stock of the tax deposit account, which, however, is acceptable in the sense of simplification of the procedure and increased legal certainty. [] 63]

Thus, there are no fatal consequences from too low a certificate. While the difference is taxable as a distribution of profits, the tax deposit account remains unchanged and could be used for the next distributions.

There is disagreement in the literature about the consequences of differing certificates (one shareholder receives a correct certificate, another an erroneous one). Here, the opinions of the socially individual[64] and the inter-societal[65] effect oppose each other. From the point of view of the author, the consequences are the company-individual effect, which assumes that incorrect certificates have effect only for the shareholder concerned, since each shareholder must assume that the certificate issued to him by the limited company is correct.

If the certificate issued shows excessive use of the tax deposit account, then § 27 para. 5 S. 4 KStG to claim the capital gains tax due on the overstated amount of the deposit guarantee against the issuing limited liability company. The corporation cannot rely on the exculpation possibilities of § 44 Abs. 5 sentence 1 second half sentence EStG by proving that it has acted neither intentionally nor grossly negligently. [] 66

The corporation has a right to recovery vis-à-vis its shareholders in the amount of the capital gains tax levied by the liability notice. [67] If it does not do so, this leads to a hidden distribution of profits to shareholders, which in turn is subject to capital gains tax. [] 68]

In § 27 paragraph 5 sentence 5 KStG, the legislature has created a possibility to correct the tax certificates. An adjustment is not obligatory as this would lead to a significant additional expense, especially for many shareholders. If the certificate is corrected, the amount of the difference is ex post acc. § 43 Abs. 1 sentence 1 EStG to withhold the capital gains tax. A liability of the providing corporation according to § 27 Abs. 5 sentence 4 KStG is excluded, since the correction means that the certificate no longer contains an overstated amount. [] 69

Schell and Philipp even plead for a precautionary certification with deliberately too much use of the tax deposit account to be issued.[70] From the point of view of the author, this is to be rejected with the associated additional effort, a possible misuse of design and repetition with declining credibility of the tax consultant.

Becomes a certificate according to § 27 para. 5 sentence 5 KStG corrected, the separate determination of the tax deposit account acc. § 27 para 2 KStG.

The tax deposit account within the meaning of § 27 KStG serves as a purely tax, off-balance-sheet additional calculation for the correct recording of tax deposits and their tax-free use / distribution. In particular, the provision and the subsequent determination procedure have a documentary function in order to provide legal certainty with regard to the use of the tax deposit account. the different times recorded in the calculations (stock of the deposit account, distributable profit at the end of the previous year, or Benefits in the current financial year prevent direct access to the tax deposit account and thus also lead to legal certainties. The compulsory certification procedure is then of great importance for the taxation of shareholders. Due to the weight of evidence of these certificates, correction possibilities are only possible for certificates issued too high. Therefore, these certificates should be carefully prepared and carefully checked by corporations or their tax advisors in order to avoid tax losses, significant additional expenses or the delay of tax-free withdrawals from the deposit account. The statutory regulations are conclusive, even if, in particular, in the case of tax assessment at the level of the recipient corporation, further sharpening (§ 8b para 2 KStG) is still necessary.

BFH judgment of 19 January 2021 – I B 3/20, NWB GAAAH-75581

BFH Resolution of 3 February 2010 – I B 32/09, BFH/NV 2010, 1128

BFH judgment of 28.10.2009 – I R 116/08, BStBl II 2011, 898

BFH, decision of 23. August 1998, GrS 1/97, BStBl II 1998, 307

BFH, Decision of 9 June 1997 – GrS 1/94, BStBl II 1998, 307

BFH judgment of 29 May 1996 – I R 118/93, BStBl II 1997, 92

BFH judgment of 30 May 1990 – I R 41/87, BStBl II 91, 588

[1] Kirchner, abbreviation list of the legal language.

[2] Oppel, SteuerStud 2020, 457 (457).

[3] BT printed matter 14/2683, 125.

[4] M/O/V, Mössner, KStG, § 27, paragraph 2.

[5] D/P/M, Dötsch, KStG, § 27, paragraph 251.

[7] Gosch, Bauschatz, KStG, § 27, paragraph 131.

[8] Gosch, Bauschatz, KStG, § 27, paragraph 132.

[9] F/D, Endert, KStG, § 27, paragraph 253, 268.

[10] BMF letter of 4 June 2003, BStBl 1 2003, 366, recital 3.

[11] Bertram, WPg 2017, 150 (151).

[12] Gosch, Bauschatz, KStG, § 27, paragraph 35.

[13] BFH judgment of 29 May 1996 – I R 118/93, BStBl II 1997, 92.

[15] BMF letter of 4 June 2003, BStBl I 2003, 366, recital 6.

[16] M/O/V, Mössner, KStG, § 27, paragraph 79.

[17] BMF letter of 4 June 2003, BStBl I 2003, 366, recital 5.

[18] B/H, Oellerich, KStG, § 27, paragraph 19.

[19] B/H, Oellerich, KStG, § 27, paragraph 148.

[20] Winkeljohann/Fuhrmann DB 06, 1862.

[21] M/S/O, Mössner, KStG § 27, paragraph 55.

[22] BFH, Decision of 23 August 1998, GrS 1/97, BStBl II 1998, 307.

[23] E/S, Lornsen-Veit, KStG § 27, paragraph 35.

[24] Ott, StuB 2018, 273 (273).

[25] BFH, Decision of 9 June 1997 – GrS 1/94, BStBl II 1998, 307.

[26] Gosch, Bauschatz, KStG, § 27, paragraph 48.

[27] Gosch, Bauschatz, KStG, § 27, paragraph 52.

[28] BFH judgment of 30 May 1990 – I R 41/87, BStBl II 91, 588.

[29] Lornsen-Veit/Behrendt, FR 07, 179.

[30] Endert, DStR 2016, 1009 (1011).

[31] F/D, Endert, KStG, § 27, paragraph 42.

[32] S/F, Schnitger and Nordmeyer, KStG, § 27, paragraph 109 f.

[33] Schönwald, SteuerStud 2006, 346 (348).

[34] Gosch, Bauschatz, KStG, § 27, paragraph 58.

[35] H/H/R, Berninghaus, KStG, § 27, paragraph 65.

[36] BMF letter of 4 June 2003, BStBl I 2003, 366 Tz 20.

[37] BMF letter of 4 June 2003, BStBl I 2003, 366 Tz 21.

[38] Boorberg, DStR 2017, 1801 (1801).

[39] Groß, SteuK 2013, 67 (68).

[40] S/F, Schnitger and Nordmeyer, KStG, § 27, paragraph 82.

[41] S/F, Schnitger and Nordmeyer, KStG, § 27, paragraph 82.

[42] H 6.2 Participation in a corporation EStH 2018.

[43] de Man, NWB EAAAF-82078, paragraph 14.

[44] Hageböke, IStR 2010, 715 (716).

[45] Binnewies, GmbH-StB 2013, 22 (22).

[46] H/H/R, Berninghaus, KStG, § 27, paragraph 19.

[47] Hoffmann, DB 2000, 1931 (1936).

[48] BFH judgment of 28.10.2009 – I R 116/08, BStBl II 2011, 898.

[49] BMF letter of 28 April 2003, BStBl I 2003, 292, paragraph 6.

[50] B/W, Antweiler, KStG, § 27, paragraph 10.

[51] Gosch, Bauschatz, KStG, § 27, paragraph 20.

[52] BMF letter of 28 April 2003, BStBl I 2003, 292, paragraph 9.

[53] Gosch, Bauschatz, KStG, § 27, paragraph 20.

[54] Streck, Binnewies, KStG, § 27, paragraph 40.

[55] F/D, Endert, KStG, § 27, paragraph 109.

[56] Gosch, Bauschatz, KStG, § 27, paragraph 70.

[57] B/W, Antweiler, KStG, § 27, paragraph 90.

[58] Streck, Binnewies, KStG, § 27, paragraph 53.

[59] BFH Decision of 3 February 2010 – I B 32/09, BFH/NV 2010, 1128.

[60] B/H, Oellerich, KStG, § 27, paragraph 61.

[61] Gosch, Bauschatz, KStG, § 27, paragraph 102.

[62] BFH judgment of 19 January 2021 – I B 3/20, NWB GAAAH-75581.

[63] Neyer, BB 2017, 3036 (3036).

[64] B/W, Antweiler, KStG, § 27, paragraph 286.

[65] R/H/N, Stimpel, KStG, § 27, paragraph 158.

[66] Schell/Philipp, DStR 2019, 2225 (2226).

[67] de Man, NWB EAAAF-82078, paragraph 68.

[68] Groß, SteuK 2013, 67 (70).

[69] Voßkuhl/Klemke, DB 2012, 2248 (2249).

[70] Schell/Philipp, DStR 2019, 2225 (2228 f.).