date | theme

25. April 2017 | Use loss carry forward in the GmbH purchase (this contribution)

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!

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

§8c KStG regulates the loss carry forward or loss loss of a GmbH in the case of the so-called harmful share acquisition. This is based on a period of five years within which the conditions for a harmful share acquisition can be met. Because then tax-unused losses are partially or even completely lost. Therefore, a subsequent loss deduction is excluded. Thus, a harmful acquisition of a shareholding is the indirect or direct transfer of membership rights, participation rights or voting rights to an entity of more than 25 % of the subscribed capital. Furthermore, it is irrelevant whether the transfer to a group of purchasers is effected free of charge or not. For this purpose, §8c(1) KStG deals with a two-stage loss deduction restriction. In the event of a detrimental acquisition of a shareholding between 25 and 50 %, the loss is proportionally reduced. In addition, however, loss carry forwards are completely lost. We present six design models with which one can prevent the sinking of the loss carry forward of a GmbH.

If the harmful acquisition exceeds the acquisition limit of 50 %, the loss deduction to be carried forward shall be completely reduced. Here, the acquisition of a shareholding refers to the civil transfer of company rights. However, a comparable situation, such as a capital increase, can also lead to a harmful acquisition of a shareholding in accordance with §8c (1) sentence 1 KStG.

2nd Limits of Share Transfer

In summary, the following limits apply to the harmful change of shareholder: