No allocation of loan interest in the event of extension before maturity

In the case of a controlling shareholder in a limited liability company (GmbH), a claim against the (solvent) GmbH is deemed to have been received for tax purposes as soon as it becomes due (known as “fictitious receipt”); actual payment or credit is therefore irrelevant. This is because a controlling shareholder of a GmbH regularly has the option of having amounts owed to them paid out as soon as the claim is clear, undisputed, and due. In its decision of September 17, 2025, case no. VIII R 30/23, the Federal Fiscal Court (BFH) takes a position on the deemed receipt fiction in the case of an agreement to extend the due date (postponement of the due date) if this is concluded before the initially agreed due date of the claim.

In the dispute, the controlling shareholder of the limited liability company granted the company a loan. The loan and accrued interest were initially agreed to be repayable on December 31, 2017. In a notarized agreement dated June 14, 2011, the shareholder waived the claim for loan repayment and made a contribution to the company in the same amount. His loan claim was deemed to have been repaid by this conversion into equity; the claim for accrued interest remained. On November 14, 2017, the parties involved decided to extend the loan by five years, until December 31, 2022. According to the wording, the principal claim and accrued interest were thus due on December 31, 2022. Although no interest was paid to the GmbH shareholder in 2017, the tax office assumed a corresponding tax inflow and assessed him for income from capital assets. The BFH ultimately took a different view.

In principle, income from capital assets is deemed to have been received as soon as the taxpayer has obtained economic control over the goods existing in cash or cash equivalents. However, the possession of (due) claims or rights does not yet lead to the receipt of capital income, as this only occurs when the claim is fulfilled.

However, the receipt of funds can also be effected by a separate agreement between the debtor and the creditor, according to which the amount is henceforth owed on a different legal basis, for example. Such a debt conversion (novation) may therefore constitute a disposal by the creditor of its previous claim, which, from an income tax perspective, is to be treated as if the debtor had settled the old debt by payment and the creditor had immediately made the amount received available to the debtor again in fulfillment of the newly created cause of debt. This was the assumption of the first-instance tax court: although the wording indicated that a postponement of the maturity of the interest claim was intended, this was not possible under civil law, as the claim for loan repayment had already lapsed in 2011 as a result of the conversion into equity. Therefore, the plaintiff had disposed of the interest claim by concluding the agreement (novation).

This must be distinguished from the mutually agreed postponement of the due date for interest payments (prolongation). A contractual amendment to this effect merely results in a deferral for tax purposes and does not justify the assumption that the creditor has disposed of the investment income, thereby giving rise to an inflow. In case of doubt, it must be determined by interpretation whether this constitutes a novation or merely a prolongation of the loan agreement under civil law. However, the BFH expressly clarifies that there is no legal principle according to which the prolongation of a loan agreement is not possible if the loan repayment obligation has already expired. Since the obligation to pay interest is one of the main obligations of the loan agreement, a loan agreement is not fulfilled in its entirety if the loan has been repaid or otherwise fulfilled but the interest has not yet been paid.

Furthermore, neither the agreement of November 14, 2017, itself nor the circumstances surrounding its conclusion provided any indication that, instead of the clearly agreed extension of the interest claim before maturity, a debt conversion might have been intended. Rather, the purpose of the agreement was to allow the interest owed to remain with the company for longer than originally agreed because the company was in financial difficulties. It thus served solely to extend the maturity of the interest claim before the initially agreed maturity date. Loan interest was still to be owed. This was not changed by the fact that the company's obligation to repay the loan principal had already expired.

The mutually agreed and civil law effective postponement of the original due date to December 31, 2022, even before it falls due, does not trigger an allocation even for a controlling shareholder. This applies regardless of whether the extension is customary for third parties. In the absence of a depotable economic asset, the interest-free deferral of the claim does not constitute a hidden contribution that could have triggered an inflow for the shareholder.


 

Notice: 

With its current decision, the BFH clarifies its earlier decision of October 5, 2004, case no. VIII R 9/03. In that decision, it assumed a fictitious inflow for deferral measures initiated under company law, the content and due date of which had initially been deliberately left unclear and ambiguous. It is now gratifying that the fictitious inflow does not have to be extended generally to prolongation agreements, which can be a means of restructuring companies in financial difficulties.