If a limited liability company is transformed into a company constituted under Civil Law, the question arises, whether it is required to enter the GbR and its shareholders into the commercial register. In practice, such entries have continuously been made, however, the Federal Court of Justice has now negated the necessity of entry. In the same case, it also had to decide on the liability consequences arising from a possibly incorrect entry that had been made.
https://it-landgraf.de/wp-content/uploads/honert_logo_270px.png00Ester Hahnhttps://it-landgraf.de/wp-content/uploads/honert_logo_270px.pngEster Hahn2018-07-02 09:50:232019-09-09 10:06:53NO ENTRY OF A GBR AFTER CHANGE OF LEGAL FORM FROM A GMBH
Notwithstanding an earlier statement, the Federal Fiscal Court decided in three rulings that excessive payments of remuneration by a limited liability company to an affiliated person of a shareholder are to be recorded for income but not for gift tax purposes. Nevertheless, a double tax burden cannot be ruled out, since the BFH does not exclude a generous donation in the relationship between the shareholder and his affiliated person.
https://it-landgraf.de/wp-content/uploads/honert_logo_270px.png00Ester Hahnhttps://it-landgraf.de/wp-content/uploads/honert_logo_270px.pngEster Hahn2018-07-02 09:40:272019-09-09 10:22:50GIFT TAX ON HIDDEN PROFIT DISTRIBUTIONS – DOUBLE BURDEN OF INCOME AND GIFT TAX?
The Federal Court of Justice has ruled that when determining insolvency, the liabilities (Liabilities II) that fall due within the three-week period after the reporting date must also be taken into account. Furthermore, the decision specifies the considerable evidence and presentation requirements for managing directors of a limited liability company who is being claimed by the insolvency administrator because of the initiation of payments after insolvency maturity.
https://it-landgraf.de/wp-content/uploads/honert_logo_270px.png00Ester Hahnhttps://it-landgraf.de/wp-content/uploads/honert_logo_270px.pngEster Hahn2018-07-02 09:30:422019-09-09 10:37:27BGH ON THE DETERMINATION OF INSOLVENCY: LIABILITIES II MUST BE TAKEN INTO ACCOUNT
The Federal Court of Finance assed an interesting decision (file no. VIII R 13/15), regarding the decision of the BFH (file no. IX R 36/15) in Q4: Accordingly, the final default of a loan leads to a loss recognized for tax purposes which must be taken into account on income from capital assets. It can be assumed that this also applies to shareholder loans and a shareholder may even benefit from a higher tax recognition than with a consideration as subsequent acquisition costs.
https://it-landgraf.de/wp-content/uploads/honert_logo_270px.png00Ester Hahnhttps://it-landgraf.de/wp-content/uploads/honert_logo_270px.pngEster Hahn2018-07-02 09:20:322019-09-09 10:55:11A FINAL DEFAULT OF A SHAREHOLDER LOAN MUST BE TAKEN INTO ACCOUNT AS A LOSS ON INCOME FROM CAPITAL ASSETS – THIS IS WHAT SHAREHOLDERS SHOULD CONSIDER IN THE FUTURE
According to the unanimous view in the literature on the AÜG, provisions under the AÜG are not applicable to managing directors. The Higher Social Court of Berlin-Brandenburg recently ruled that managing directors are subject to a statutory pension insurance due to an unauthorized temporary employment in accordance with the AÜG. Therefore, the question arises, whether and to what extent an employment of a managing director can nonetheless be affected by the AÜG.
The Federal Court of Justice [Bundesgerichtshof – BGH] commented on the admissibility of the furnishing of securities granted by companies in favor of their shareholders and on the so-called capital maintenance rules in AGs [Aktiengesellschaft – stock corporation] and GmbHs [Gesellschaft mit beschränkter Haftung – limited liability companies]. Capital maintenance rules have an “indirect” effect […]
https://it-landgraf.de/wp-content/uploads/honert_logo_270px.png00Ester Hahnhttps://it-landgraf.de/wp-content/uploads/honert_logo_270px.pngEster Hahn2018-03-28 15:55:082019-09-03 16:40:03FURNISHING OF UPSTREAM SECURITIES – HERE IS WHAT MANAGING DIRECTORS SHOULD PAY ATTENTION TO
NO ENTRY OF A GBR AFTER CHANGE OF LEGAL FORM FROM A GMBH
/in 2018 Q2/by Ester HahnIf a limited liability company is transformed into a company constituted under Civil Law, the question arises, whether it is required to enter the GbR and its shareholders into the commercial register. In practice, such entries have continuously been made, however, the Federal Court of Justice has now negated the necessity of entry. In the same case, it also had to decide on the liability consequences arising from a possibly incorrect entry that had been made.
GIFT TAX ON HIDDEN PROFIT DISTRIBUTIONS – DOUBLE BURDEN OF INCOME AND GIFT TAX?
/in 2018 Q2/by Ester HahnNotwithstanding an earlier statement, the Federal Fiscal Court decided in three rulings that excessive payments of remuneration by a limited liability company to an affiliated person of a shareholder are to be recorded for income but not for gift tax purposes. Nevertheless, a double tax burden cannot be ruled out, since the BFH does not exclude a generous donation in the relationship between the shareholder and his affiliated person.
BGH ON THE DETERMINATION OF INSOLVENCY: LIABILITIES II MUST BE TAKEN INTO ACCOUNT
/in 2018 Q2/by Ester HahnThe Federal Court of Justice has ruled that when determining insolvency, the liabilities (Liabilities II) that fall due within the three-week period after the reporting date must also be taken into account. Furthermore, the decision specifies the considerable evidence and presentation requirements for managing directors of a limited liability company who is being claimed by the insolvency administrator because of the initiation of payments after insolvency maturity.
A FINAL DEFAULT OF A SHAREHOLDER LOAN MUST BE TAKEN INTO ACCOUNT AS A LOSS ON INCOME FROM CAPITAL ASSETS – THIS IS WHAT SHAREHOLDERS SHOULD CONSIDER IN THE FUTURE
/in 2018 Q2/by Ester HahnThe Federal Court of Finance assed an interesting decision (file no. VIII R 13/15), regarding the decision of the BFH (file no. IX R 36/15) in Q4: Accordingly, the final default of a loan leads to a loss recognized for tax purposes which must be taken into account on income from capital assets. It can be assumed that this also applies to shareholder loans and a shareholder may even benefit from a higher tax recognition than with a consideration as subsequent acquisition costs.
DOES THE GERMAN TEMPORARY EMPLOYMENT ACT [“ARBEITNEHMERÜBERLASSUNGSGESETZ” – AÜG] APPLY TO MANAGING DIRECTORS?
/in 2018 Q2/by Ester HahnAccording to the unanimous view in the literature on the AÜG, provisions under the AÜG are not applicable to managing directors. The Higher Social Court of Berlin-Brandenburg recently ruled that managing directors are subject to a statutory pension insurance due to an unauthorized temporary employment in accordance with the AÜG. Therefore, the question arises, whether and to what extent an employment of a managing director can nonetheless be affected by the AÜG.
FURNISHING OF UPSTREAM SECURITIES – HERE IS WHAT MANAGING DIRECTORS SHOULD PAY ATTENTION TO
/in 2018 Q1/by Ester HahnThe Federal Court of Justice [Bundesgerichtshof – BGH] commented on the admissibility of the furnishing of securities granted by companies in favor of their shareholders and on the so-called capital maintenance rules in AGs [Aktiengesellschaft – stock corporation] and GmbHs [Gesellschaft mit beschränkter Haftung – limited liability companies]. Capital maintenance rules have an “indirect” effect […]