The departure abroad regularly triggers the so-called exit tax according to § 6 AStG for GmbH shareholders. The background to this scheme is that the German Treasury may permanently lose the right to tax on a subsequent sales profit. However, there are ways to avoid the detection and taxation of the hidden reserves when moving away. Let’s take a look at the gift with simultaneous usufruct at the GmbH!
If you move abroad as a shareholder or shareholder of a corporation (AG, GmbH, UG, Limited), your unlimited tax liability in Germany usually ends. According to § 1 (1) no. 1 EStG, you need either a residence or an ordinary residence in Germany in order to be taxable here without restriction. At the same time, you may be pursuing this goal in order to reduce your tax burden.
Now the departure leads to a fictitious sale of your GmbH shares within the meaning of § 17 EStG (§ 6 (1) no. 1 AStG). The background is the possible permanent loss of the BRD’s taxation right to a possible sales profit. An early taxation of this profit therefore takes place according to the motto “now or never”.
These tax consequences can be avoided with a usufruct at the GmbH, whereby the usufruit moves abroad. Legal and economic owner of the GmbH, however, remains in Germany.
In summary, the initial case is thus as follows:
This article does not replace tax or legal advice in an individual case. Facts, current law, jurisdiction, documentation and implementation remain decisive.