first When and how completed an agreement with the shareholder's limited liability company?
The FG Munich with his decision dated 28.9.2009 (7 K 2374/08) described again very nice, what conditions must be met before a contract of the CEO completed with its dominant partner GmbH is to be considered.
Assessment therefore particularly important, because even in principle, reduce payments to the shareholder as a business expense, the tax base. But this is not the case, if the agreed payments are not paid, the contract is therefore not complete.
In the decisive issue involved the question of whether a bonus that was calculated correctly based on a proper agreement can be considered as paid when it was booked in the balance sheet as a liability only. The FG has stated in that law that carried out the BFH an agreement between the corporation and a controlling shareholder actually must be to show their seriousness. This assumes that the bonus in the sense of § 11 of the Income Tax Act is also accrued to the actual shareholders. No foreign third party manager would wait for a longer period to a portion of his rightful compensation.
But that does not mean that a payment must actually be executed. It is also sufficient set-off against a debt or conversion of claim the shareholder loan into an explicit agreement. From the last reason why is the update on a settlement account of the shareholder-manager, about the feature it can always be considered as ex-or inflow. The FG has also stated that it is to be regarded as harmless if a bonus is only for a period of up to a year argued to their maturity.
Since this is not the case decided was correct, the liability was recorded as bonus to be treated as a constructive dividend. The gain was increased accordingly, calculates taxes and interest charges.
are not always frequently royalties that lead to such a question, If it is are various reasons abandoned salaries of managing partners. always note carefully that the flow of content is to be regarded as secured, so that surprises are avoided during the next tax audit.
second loss carry-back from a loss of creation barred
It corresponds to the principle of taxation according to the capacity of the taxpayer for the loss of one type of income that can not be offset against other income may be transferred to other tax years. This ensures that "Viewed over time," only the income is subject to taxation, which the taxpayer is actually accrued.
stands as an instrument to § 10d of the Income Tax Act is available. They shall lay losses up to an amount of € 511,500 (€ 1.023 million for jointly assessed spouses) carried back to the previous year and still not be balanced losses are carried forward to subsequent assessment periods. The loss is a year full of up to € 1 million and also netted up to 60% of the € 1.0 million in excess of the total amount of income. This does lead to a minimum tax in future years, but also to the complete settlement of the losses, if future profits are made.
On 27 1. 2010 decision of the BFH (IX R 59/08, published on 12 5, 2010) quite consistently a somewhat unusual factual situations. Here was the loss of creation has already occurred determining statute of limitations, which means that changes to the investment this exact Year, while shot. The coveted the taxpayer not. The loss stood firm and should not be changed. The taxpayer wanted but the loss to carry back to the rules of § 10d para 1 Income Tax Act on the previous year. For certain reasons for this year but the assessment had already become final, entered the establishment limitation as yet.
the loss carry-back has not allowed the tax office. The Tax Court, however, gave the taxpayer rights. Nevertheless, the Tax Office remained stubborn and applied to the BFH, set aside the verdict of that court and the entire action be dismissed. The details of the reasons I will not go into here.
not followed the BFH. He stated in the above sentence, that is not the reason for and amount of the loss back portable decided in creation, but in the year in which the impact of the tax loss carry-back. Since this year, however - was not festsetzungsverjährt because of appeals by the taxpayer was not a final decision, applies only to § 10 para 1 sentence 1 ITA d - as in the dispute.
then was allowed to the taxpayer who requested back as his loss. This is where persistence has once again been paid.
third Silent partner or shareholder loan
According to § 3 No. 24 TTA, certain investment companies, such as the Mid-sized investment company Sachsen mbH, from business tax free, be justified if and where according to the purpose of the company dormant companies with other companies in order to strengthen the equity of the sponsoring company. The prerequisite is that the participation agreements are tailored to the fact that the investing partner is insolvent or in liquidation of the investee in losses participate and control rights, receives over and above those that § § 233 ff HGB will at least provided. Avoided, however, the creation of a sometimes entrepreneurial involvement in the investee companies. The latter led to the unwanted situation of co-contractor with all tax and, if applicable tort law.
also be avoided, the qualification of participation as a shareholder loan, as this is a risk of loss consists of the business tax exemption of the participating dealer. The Saxon Tax Court limited its ruling of 7 now 12. 2009-5 669/06 K two facts from each other. It stated that it was content with a participation loan to a loan agreement is the sense of civil law, which has the peculiarity that has been agreed in place of or in addition to a (minimum) a participation interest in the profits.
If that was going to always help It would be all right. But unfortunately, such an agreement can also lead to a typical silent partnership. The Tax Court therefore found it also significant that the only investor in the creation of a silent partnership, the exemption in § 3 No. 24 GewStG obtained and can also strengthen the equity of the company sponsored.
Apart from being a typical silent partnership under HGB rules will not be considered as equity, it is remarkable that the Tax Court based exceedingly large, that the purpose of the contract and the economic objectives of the Parties for classification as equity or liability are of crucial importance. I may be pushing the impression that probably can not be not be what.
This idea - the only reason I point to the verdict - , in other cases where foals better arguments be quite helpful to establish its own position in regard to financial management.
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