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- Title
Anwendbarkeit § 8 Abs. 3 Satz 4 KStG auch bei verdeckter Einlage aus dem Privatvermögen natürlicher Personen sowie bei unterbliebener Besteuerung beim einbringenden Gesellschafter nach § 17 Abs. 1 Satz 2 EStG; Abgrenzung zwischen verdeckter oder offener Sacheinlage bei Einbringung von GmbH-Anteilen in eine Kapitalgesellschaft; Bilanzberichtigung bei unzutreffend als offene Sacheinlage behandelter Einlage von GmbH-Anteilen
- Authors
Rüsch, Gary
- Abstract
The article deals with the tax treatment of hidden contributions by shareholders. If a shareholder contributes their shares covertly instead of openly selling them, their taxable income is reduced. Section 8 (3) sentence 4 of the Corporate Income Tax Act (KStG) also covers cases in which a hidden contribution is equivalent to a transfer of shares from private assets. This prevents the realization of hidden reserves from remaining untaxed. The increase in income affects the tax year 2012, and the balance sheet must be adjusted accordingly. The Mecklenburg-Western Pomerania Tax Court has ruled that a hidden contribution qualifies as a reduction in income within the meaning of Section 8 (3) sentence 4 of the KStG. The case in question concerned the corporate tax valuation of a transfer of shares. The court argued that the prevention of an increase in income through non-taxation in accordance with Section 17 (1) sentence 2 of the Income Tax Act (EStG) fulfills the requirements for a reduction in income. The decision is based on the wording of the law and the purpose of Section 17 (1) sentence 2 of the EStG. However, the wording of Section 8 (3) sentence 4 of the KStG inadequately reflects the legislative intent. The article addresses two different topics. The first part of the article discusses the different taxation depending on the tax characteristic and the interpretation of the corresponding provisions. The second part of the article deals with the deduction of childcare costs as special expenses according to Section 10 (1) No. 5 of the EStG and the constitutionality of household membership as a deduction requirement. It is determined that the criterion of household membership is constitutionally permissible and does not violate the tax exemption of the subsistence level and the general principle of equality if the childcare expenses are covered by the granted tax allowance. It is noted that the proceedings before the Federal Fiscal Court are still pending and that the decision of the Mecklenburg-Western Pomerania Tax Court could possibly be confirmed, but could also turn out differently.
- Subjects
MECKLENBURG-Vorpommern (Germany); GERMANY; TAX laws; INCOME tax; VALUATION of corporations; CORPORATE taxes; TAX exemption; STOCKHOLDERS; INHERITANCE &; transfer tax; TAX courts
- Publication
FinanzRundschau, 2023, Vol 105, Issue 24, p1154
- ISSN
2567-4765
- Publication type
Article
- DOI
10.9785/fr-2023-1052406