Tax authorities recognize incongruent profit distributions
Tax authorities recognize incongruent profit distributions
According to the ruling of the BFH dated September 28, 2022, VIII R 20/20, a resolution breaking through the articles of partenership on an incongruent advance distribution of a GmbH is also to be used as the basis for taxation under certain formal requirements as a distribution resolution effective under civil law. The tax authorities are adopting the principles of the ruling and thus changing their legal opinion previously set out in the BMF letter dated December 17, 2013.
In its current letter dated September 4, 2024, the tax authorities now generally recognize incongruent profit distributions - i.e. distributions that deviate from the relation of the shares in the share capital or nominal capital - for tax purposes. In accordance with the BFH principles, however, this requires that the corresponding distribution resolution is effective under civil law. The BMF circular explains the principles and special features of the constellations that arise in practice in this respect.
The tax recognition of a deviating profit distribution also exists if the articles of incorporation contain a clause according to which a profit distribution deviating from the statutory or legal regulation can be resolved with the consent of the affected shareholders. However, due to the necessary effectiveness under civil law, the resolution must also have been passed with the necessary shareholder approval and the majority specified in the articles of incorporation.
In addition to these previously recognized constellations, a resolution breaking through the articles of incorporation on an incongruent advance distribution is now also recognized for tax purposes. This must have been passed by the shareholders' meeting with the votes of all shareholders and may not be contested by any shareholder. Even if the BMF letter - with reference to the case decided by the BFH - only refers to an advance distribution, these principles should also apply to any profit distributions.
In its current letter dated September 4, 2024, the tax authorities now generally recognize incongruent profit distributions - i.e. distributions that deviate from the relation of the shares in the share capital or nominal capital - for tax purposes. In accordance with the BFH principles, however, this requires that the corresponding distribution resolution is effective under civil law. The BMF circular explains the principles and special features of the constellations that arise in practice in this respect.
Limited liability company (GmbH)
If a distribution ratio that deviates from the relation of the shares has already been determined in the articles of incorporation and the distribution corresponds to this ratio, tax recognition is unproblematic. However, the tax authorities require that a subsequent amendment to the articles of incorporation to regulate an incongruent distribution of profits must also be approved by the shareholders who are adversely affected by the change. However, it is questionable whether this is necessary for an amendment to the articles of incorporation to be effective under civil law in certain participation constellations and majority requirements (majority participation is higher than the majority required for amendments to the agreement).The tax recognition of a deviating profit distribution also exists if the articles of incorporation contain a clause according to which a profit distribution deviating from the statutory or legal regulation can be resolved with the consent of the affected shareholders. However, due to the necessary effectiveness under civil law, the resolution must also have been passed with the necessary shareholder approval and the majority specified in the articles of incorporation.
In addition to these previously recognized constellations, a resolution breaking through the articles of incorporation on an incongruent advance distribution is now also recognized for tax purposes. This must have been passed by the shareholders' meeting with the votes of all shareholders and may not be contested by any shareholder. Even if the BMF letter - with reference to the case decided by the BFH - only refers to an advance distribution, these principles should also apply to any profit distributions.
Note:
These (few) formal requirements only apply to a selective resolution breaking through the articles of incorporation, the effect of which is limited to the measure in question and does not amend the articles of incorporation with effect for the future. In the case of a shareholders' resolution that breaks through the articles of incorporation and has a certain permanent effect, all material and formal provisions of an amendment to the articles of incorporation must also be complied with.Public limited company (AG)
For an AG, the tax recognition of an incongruent profit distribution still requires that the statutes already stipulate a profit distribution key that deviates from the ratio of shares in the share capital and that the distribution corresponds to this ratio. A mere opening clause in the statutes or a resolution breaking through the statutes can therefore not justify the tax recognition of an incongruent profit distribution.Note:
With the adoption of the legal principles already established by the BFH by the tax authorities, the structuring options in practice have fortunately been significantly expanded, at least for GmbHs. Nevertheless, sufficient attention should be paid to the respective formal requirements. The restrictions for the AG are understandable in view of the already much more restrictive regulations under company law.