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- Title
Ausschluss oder Beschränkung des nationalen Besteuerungsrechts ist kein ungeschriebenes Tatbestandsmerkmal des § 6 Abs. 1 Satz 2 Nr. 1 AStG.
- Abstract
The article deals with the interpretation of § 6 para. 1 sentence 2 no. 1 AStG (Foreign Tax Act) with regard to the gratuitous transfer of shares. It is stated that German taxation rights are not excluded or limited when shares are transferred gratuitously to a limited tax resident recipient. The decision of the Federal Fiscal Court (BFH) of December 8, 2021 (I R 30/19) confirms this interpretation. In the present case, it concerns the transfer of shares in a GmbH (limited liability company) to the son of the transferor. The tax office treats this transfer as a partially remunerated acquisition and determines a taxable transfer gain. The tax court and the Federal Fiscal Court confirm this decision and argue that the conditions for an exit taxation are fulfilled. The provisions of foreign tax law are intended to ensure that any increase in value generated within Germany is not withdrawn from the German tax authorities. The provision of § 6 para. 1 sentence 2 no. 1 AStG is fulfilled in the present case and does not need to be interpreted restrictively.
- Subjects
GERMANY; INHERITANCE &; transfer tax; TAX exclusions; TAX laws; FEDERAL court decisions; TAXATION of stock transfers; HIDDEN reserves (Accounting); PRIVATE companies; TAX courts
- Publication
FinanzRundschau, 2022, Vol 104, Issue 19, p888
- ISSN
2567-4765
- Publication type
Article
- DOI
10.9785/fr-2022-1041908