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- Title
Wegfall der Geschäftsgrundlage im Steuerrecht.
- Authors
Götz, Hellmut
- Abstract
The article "Disappearance of the Basis of Business in Tax Law" deals with the legal requirements for the unwinding of contracts in tax law. It explains that § 313 of the Civil Code is the most important legal regulation for the unwinding of contracts when there are no contractual recovery provisions. The basis of business is subjectively defined as the common understanding of the contracting parties at the time of contract conclusion. It is emphasized that the application of the principles regarding the disruption of the basis of business only leads to the complete elimination of the contractual relationship in exceptional cases, and that in general, an adjustment of the contract is sought. The text deals with the topic of the disappearance of the basis of business in tax law. It is pointed out that in the case of a unilaterally affected sphere of risk, such as in the case of spouses who are jointly assessed, the disappearance of the basis of business cannot be claimed if the change in circumstances was brought about by the parties themselves. The primary legal consequence of the disappearance of the basis of business is the right to contract adjustment according to § 313 para. 1 and para. 2 of the Civil Code. Withdrawal from the contract is possible if an adjustment is not possible or unreasonable. The unwinding of the contractual relationship is carried out according to § 346 para. 1 of the Civil Code by the return of the received benefits. It is emphasized that the transferor of an asset can only assert the rights under § 313 of the Civil Code if the breakdown of the relationship of trust is not solely attributable to him. The Lower Saxony Tax Court states that the legal basis for the disappearance of the basis of business must be inherent in the original legal transaction. It is pointed out that it has not yet been clarified what exactly is meant by "inherent" in the original legal transaction. The Tax Court understands the wording "inherent in the original legal transaction" to mean that the reason for the reversal does not have to be contained in the wording of the contract, but it is also not sufficient if it is merely claimed that there was a common misconception at the time of contract conclusion. It must be recognizable that the circumstances underlying the contract conclusion were already inherent in the contract. The article deals with the application of § 313 of the Civil Code to the tax consequences of contracts. According to civil case law, a common mistake regarding tax consequences can lead to the disappearance of the basis of business. In the case in question, the parties to a purchase agreement for shares in a GmbH had unwound the agreement, but the tax authorities did not want to accept this with retroactive tax effect. The Federal Fiscal Court (BFH) decided that the tax consequences of a sales transaction do not lie solely within the seller's sphere of risk if the contracting parties have explicitly made a certain distribution of tax burdens the basis of the contract. The Lower Saxony Tax Court decided in another case that a realized capital gain can be eliminated with retroactive tax effect if the taxpayer invokes the disappearance of the basis of business. It is emphasized that the parties' intentions should be documented in such cases in order to successfully invoke § 313 of the Civil Code. This summary refers to an article titled "Götz - Disappearance of the Basis of Business in Tax Law."
- Subjects
LOWER Saxony (Germany); GERMANY; TAX laws; CIVIL procedure; PRENUPTIAL agreements; EXCLUSIVE contracts; LEGAL settlement; CONTRACTS; TAXATION; BUSINESS tax; CAPITAL gains; POWER purchase agreements
- Publication
FinanzRundschau, 2023, Vol 105, Issue 13, p599
- ISSN
2567-4765
- Publication type
Article
- DOI
10.9785/fr-2023-1051303