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- Title
Höhe nachträglicher Anschaffungskosten bei in der Krise stehen gelassener Darlehen nach § 17 Abs. 2a Satz 3 Nr. 2 EStG.
- Authors
Bode, Walter
- Abstract
The article deals with the evaluation of loans left in crisis according to § 17 para. 2a sentence 3 no. 2 EStG (German Income Tax Act). A loss from such a loan is not taken into account under § 20 EStG if the loss occurred before December 31, 2008. The case of a shareholder loan left in crisis is given as an example for the application of these regulations. The tax court and the Federal Fiscal Court have decided that the alleged loan loss cannot be recognized. The present text deals with various judgments of the Federal Fiscal Court (BFH) on the topic of dissolution loss and subsequent acquisition costs within the framework of the Income Tax Act (EStG). It is explained that after the abolition of the equity replacement law by the Law on the Modernization of the GmbH Law and the Combating of Abuses of October 23, 2008, the previous case law on the consideration of expenses by the shareholder from equity-replacing financing aids as subsequent acquisition costs continues to apply. In addition, the legal basis for the consideration of acquisition costs within the framework of § 17 EStG is discussed, which was introduced by the Law on Further Tax Incentives for Electromobility and Amendment of Other Tax Regulations. It is emphasized that the principles for the consideration of equity-replacing financing aids as subsequent acquisition costs continue to apply. The wording of the law does not contradict this. The text deals with the application of principles for the evaluation of subsequent acquisition costs according to § 17 para. 2a EStG. It is pointed out that loan losses can only be taken into account to the extent that they are legally caused by the company. The legislator wanted to build on the previous case law on the consideration of expenses by the shareholder from equity-replacing financing aids with the introduction of § 17 para. 2a EStG. It is emphasized that the legislator wanted to consider certain loan losses as subsequent acquisition costs, deviating from previous judgments. The application of the principles for the evaluation of subsequent acquisition costs corresponds to the purpose and objective of the law and the objective net principle. The text deals with the legal cause of loan losses according to § 17 para. 2a sentence 3 no. 2 and para. 2a sentence 4 EStG. It is stated that such a cause only exists to the extent of the fair value of the loan at the time of the crisis. It is also pointed out that the principles of case law on the consideration of expenses by the shareholder from equity-replacing financing aids should not be overridden. It is argued that the previous evaluation principles should be maintained and that systematic considerations speak in favor of this retention. Furthermore, it is explained that loan losses can be taken into account in the income from capital assets and that the case law on the evaluation of impaired shareholder loans is not applicable to the evaluation of subsequent acquisition costs. The present text deals with the tax consideration of a loan default according to § 20 para. 2 sentence 1 no. 7 EStG.
- Subjects
BOUNDARY disputes; DEFAULT (Finance); LOAN losses; STOCKHOLDERS; LOANS; MARKET value; PLAINTIFFS; TAX planning; BANKRUPTCY; LEGAL costs; TAX incentives; STOCKHOLDERS equity
- Publication
FinanzRundschau, 2024, Vol 106, Issue 3, p132
- ISSN
2567-4765
- Publication type
Article
- DOI
10.9785/fr-2024-1060306