A division of operations occurs when there is a material and a human connection between two companies. This in turn requires that a person in both companies can enforce a uniform business will. However, the so-called person group theory must also be considered. A division of operations thus also arises if not one individual but one group of people controls both companies. If the members of the group pursue similar interests, they shall trigger a division of operations.

1st basic features of the theory of groups of persons

In practice, a division of operations usually occurs when an individual transfers assets to “their” GmbH. She is, for example, a shareholder-managing director who holds a 100% stake in the GmbH and founded it alone. In the private assets of the shareholder is a property, which he now leases to his GmbH. This creates the division of operations – an individual controls both the GmbH (the so-called operating company) and the transferred assets (the so-called holding company).

Within the framework of the person group theory developed by the Bundesdesfinanzhof (BFH of 12.11.1985, VIII R 240/81, BStBl II 1986, 296), several persons are now involved in the division of operations. They jointly control the provided essential operating basis and/or the operating company in the legal form of the GmbH.

In principle, it does not matter how the voting and property rights are distributed. The decisive factor is that the group of people ultimately controls both the owner and the operating company.

1.1. Pursuit of similar economic interests

In order for the person group theory to be applied, the persons involved (natural or legal) must pursue a uniform will to act. Another term for this presupposition is the pursuit of equal or equal economic interests, whereby the question of the “will” still has to be asked separately.

A uniform will to act pursues persons who share common ideas with regard to the operating company (mostly operative GmbH). This is shown, for example, by the fact that the persons