Distribution block

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In commercial and accounting law, a distribution block refers to the contractual or statutory limitation of the profit distributions to the shareholders .

General

Distribution blocks serve in particular to protect creditors and represent an interference with the distribution autonomy of companies. Since the distribution of book profits attacks the substance of the company to the detriment of the creditors, the distribution of pure book profits from certain transactions is to be prevented. This is intended to ensure that the creditors of a company can maintain the liable capital (capital maintenance function). This is especially true for corporations , because their creditors usually only use the equity capital as a liability. Therefore, the legal scope of the distribution block is limited to corporations. The core idea of ​​a distribution block is that the assets that are subject to a distribution block may not be distributed to the shareholders of the accounting company. Distribution blocks have a creditor protection function because the profits of the company and thus the creditors that are subject to the block are retained. The legally standardized distribution blocks reduce the conflict of objectives between the information function and the distribution regulation function of the annual financial statements.

species

A distinction must be made between the contractual and statutory distribution block. Contractual barriers to distribution tend to allow the shareholders to voluntarily waive the profits to which they are entitled, while statutory barriers force the shareholders to forego the blocked profits.

Contractual distribution bans

The articles of association can stipulate that only a certain percentage of the annual surplus is to be distributed to the shareholders and that the part blocked from distribution remains as retained earnings in the company as retained earnings . Such contractual regulations can be canceled again at any time by the shareholders.

Statutory distribution bans

In EU law

The 4th EU accounting directive of July 1978 took in the International Accounting Standards provided revaluation reserve in Art. 33 para. 1a and looked for them a distribution restriction (Art. 33, para. 2c), a conversion into revenue reserves was however allowed (Art 33 para. 2b). While these regulations have been transformed into national law in all EU member states , Germany has not taken them into account in commercial law . This directive was repealed by Directive 2013/34 / EU (Balance Sheet Directive) in June 2013. According to Article 7 (1), this new directive also enables the EU member states to enact national regulations allowing all companies to value fixed assets at revaluation amounts, whereby the difference between the valuation at acquisition or production costs and the valuation is based Revaluation basis is to be added to the revaluation reserve in the balance sheet under "Equity". A distribution block continues to apply (Art. 7 Para. 2).

In the HGB

In the HGB , distribution blocks are always provided when certain assets are capitalized. Activating them regularly results in an increase in profit (decrease in loss) which, as a pure book profit, cannot be attributed to operating activities. In certain cases, according to the will of the law, increases in profits from pure book profits based on the accounting for certain assets should not be distributed to the shareholders.

The general distribution norm of § 235 HGB (old version), according to which the distributable profit of a financial year had to be reduced by write-ups, income due to the release of valuation reserves and income due to the release of capital reserves, is no longer applicable. Furthermore, the capitalization of treasury shares and shares in controlling or majority-owned companies as provided for in Section 225 (5) HGB (old version) is no longer applicable. The capitalization of expenses for the start-up and expansion of a company contained in Section 226 (2) HGB (old version) has also been omitted. Correspondingly, the dividend blocks for own shares or start-up costs are no longer applicable.

So far, a distribution block was provided, in particular for capitalized expenses for the start-up and expansion of business operations (Section 269 HGB old version) and a reported balance of deferred tax assets (Section 274 (2) HGB old version). Since both positions were rather insignificant in the past, the distribution block was of secondary importance in German commercial law. That changed with the BilMoG of May 2009. The BilMoG has created new distribution blocks.

Some accounting issues will be blocked from distribution in the future. A distribution block according to Section 268 (8) of the HGB is provided for

In view of the increasing importance of internally generated intangible assets as well as the differences between the commercial and tax balance sheets, which have tended to increase as a result of the BilMoG, and the associated increased importance of deferred taxes, the problem for companies arising from Section 268 (8) of the German Commercial Code (HGB) increases.

A distribution block applies to the surplus of deferred tax assets ( Section 268 (8) sentence 2 HGB) and to the excess fair value of plan assets in connection with pension obligations less the deferred tax liabilities ( Section 268 (8) sentence 3 HGB).

The introduction of fair value valuation in Section 253, Paragraph 1, Clause 3 of the HGB partially undermines the principle of imparity . However, the fair value measurement is limited only to financial instruments acquired for trading purposes ; an intention to speculate is required. There is then a statutory distribution block for reported unrealized profits. This is to prevent profits from being distributed that have not yet been realized.

A distribution block was introduced by changing the discounting rules for pension provisions. According to Section 253 (6) of the German Commercial Code (HGB), profit distributions may only be made if, after the distribution, freely available reserves in the amount of the difference from the change in valuation remain.

In the Stock Corporation Act

Section 150 (3) and (4 ) AktG provides for a special distribution block . If the legal reserve and the capital reserves together do not reach 10% of the share capital , these reserves may only be used to compensate for a loss or a loss carried forward (paragraph 3). A capital increase from company funds ( § 207 to § 220 AktG) is possible in accordance with paragraph 4 if this 10% limit is exceeded and there is no longer an annual deficit or loss carryforward. These clear usage provisions prohibit - by not mentioning - a distribution to the shareholders. The reserves must therefore reach a level that meets the legal requirements and thus enables a profit distribution from reserves (e.g. in the case of dividend continuity ).

According to Section 58 (2a) of the German Stock Corporation Act (AktG), the management board can resolve, with the approval of the supervisory board , that income from write-ups will not be distributed, but will be allocated to “other revenue reserves”. This prevents unrealized book profits from reversals from being distributed to shareholders. Section 29 (4) GmbHG contains the same regulation for the GmbH .

In banking

According to § 10c KWG , a “ capital maintenance buffer ” is to be created for the own funds of banks (see core capital ratio ), which has to reach at least 2.5% of the total amount receivable. If it is fully or partially used for losses incurred , a distribution block - based on the remaining amount of the buffer - applies, which records both profit and dividend distributions and discretionary payments such as bonus payments . In addition, according to Section 10d KWG, a countercyclical capital buffer consisting of hard core capital ("Countercyclical Capital Buffer") of 2.5% of the total amount receivable must be created. On the one hand, it is intended to limit the system-wide build-up of credit risks in the upswing phase and, on the other hand, to ensure sufficient credit supply for the economy in the downturn. Its use also leads to the distribution block.

Calculation of the distribution block

If there are reasons for a distribution block , not the entire annual profit is subject to a block. The law stipulates exactly what cannot be distributed. The basis for assessment of a distribution block is initially the annual surplus (“profit”), which is to be determined in accordance with Section 275 (3) HGB.

In the context of an existing distribution block, the amounts that are eligible for a distribution block (assessment amounts) must first be determined from the relevant facts. The calculated assessment amounts must then be compared with the freely available reserves or the annual surplus to determine whether amounts are actually blocked from distribution. Income from the capitalization of internally generated intangible fixed assets may only be distributed if the freely available reserves remaining after the distribution, minus a loss carryforward or plus a profit carryforward, are at least equal to the income resulting from the capitalization. Taking into account the profit and loss carryforwards, the freely available reserve must therefore be at least as high as the distribution amount attributable to the capitalized amounts.

According to Section 268, Paragraph 8, Clause 1 of the German Commercial Code (HGB), profits may only be distributed when accounting for original goodwill if the freely available reserves remaining after the distribution plus a profit carryforward and less a loss carryforward are at least equal to the total amounts recognized less the deferred tax liabilities. Sentence 2 of this provision deals with the disclosure of deferred tax assets. Then the assessment basis from sentence 1 is to be applied to the amount by which the deferred tax assets exceed the counterpart passive position. Sentence 3 deals with the assets of the old-age provision. In general, a distribution may not be made if the assessment amounts are higher than the freely available reserves. To improve the clarity of the balance sheet , the total amount of the amounts blocked from distribution in accordance with Section 285 No. 28 of the German Commercial Code is to be stated in the notes.

Tax union issues

The above distribution barriers have an impact on the distributable net income, which in turn the basis of existing profit transfer agreements forms. In a letter dated January 14, 2010, the Federal Ministry of Finance announced that it was not necessary to adjust the profit and loss transfer agreements due to the amended Section 301 AktG. In carrying out the transfer of profits, however, the revision of is § 301 AktG observed, so that the tax group remains recognized for tax purposes. Since profit and loss transfer agreements are about profit transfer, the law speaks of a transfer block. An incorrect calculation of the transfer block could lead to non-recognition of the tax group.

It is controversial how the term “freely available reserves” used by law is to be understood. As freely available reserves, both revenue reserves and capital reserves in accordance with Section 272 (2) No. 4 of the German Commercial Code (HGB) are initially to be taken into account due to the legal justification . In the case of existing tax groups, however, a distinction must be made between the pre-tax group and the reserves formed during the term of the contract when determining the amounts blocked. Frotscher is of the opinion that the consideration of pre-unified free reserves would ultimately lead to a harmful transfer of pre-unified reserves. Simon, on the other hand, justifies his concerns about the inclusion of pre-unified free reserves by stating that the possibility of distributing pre-unified reserves through the transfer of asset increases from the activation of balance sheet items that are barred from distribution is reduced and that the competence of the general meeting of the dependent company can be interfered with.

The pre-unified reserves are to be included in the determination of the transfer block because the wording of § 301 sentence 1 AktG refers unreservedly to § 268 (8) HGB, which in turn does not differentiate between the timing of the free reserves. In addition, the inclusion of pre-group reserves in the calculation of the transfer block does not lead to a transfer of the pre-group reserves, because their amount remains unchanged. As a result, they are only used to determine the amount of the annual surplus that may not be transferred.

The standard purpose of protecting creditors is based on the assumption that only those profits are to be excluded from the transfer that may not be distributed even without a profit transfer agreement according to Section 268 (8) HGB. The fact that pre-organization reserves can only be distributed by resolution and with the consent of the parent company speaks against the concerns about encroaching on the competence of the general meeting . The BilMoG has led to uncertainties here with regard to the consideration of pre-consolidation reserves when determining the transfer block.

literature

  • Henning Zülch, Sebastian Hoffmann: Problems and possible solutions of the "new" distribution block according to § 268 Paragraph 8 HGB . In: Der Betrieb , April 30, 2010, pp. 909–912.

Individual evidence

  1. ↑ Bundestag printed paper 16/10067 of July 30, 2008, p. 50.
  2. ↑ Romuald Bertl, Friedrich Fraberger: Special issues of the distribution block . In: RWZ , 2000, p. 274.
  3. ↑ Directive 78/660 / EEC of July 25, 1978, ABl. 222/11
  4. ↑ Elke Büsselmann: banking supervision and market-related equity . 1993, p. 140.
  5. ↑ from June 26, 2013, OJ. L 182/19
  6. ↑ Discounting of pension provisions . ( Memento of the original from March 14, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. NWB-Verlag; accessed on March 14, 2016. @1@ 2Template: Webachiv / IABot / nwb-experten-blog.de
  7. ^ Philipp Lessenich: Structure and meaning of the new equity and liquidity rules . 2013, p. 40.
  8. ↑ Philipp Lessenich: Design and meaning of the new equity and liquidity rules , 2013, p. 41.
  9. ↑ a b BT-Drucksache 16/10067 of July 30, 2008, p. 64.
  10. ↑ Letter from the BMF, Az: IV C 2 - S 2770/09/10002 - (2009/0861137)  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. (PDF)@1@ 2Template: Toter Link / www.bundesfinanzministerium.de  
  11. ↑ Gerrit Frotscher, Ernst Maas: KStG commentary , § 14 marginal number 211a
  12. ↑ Stefan Simon: Disbursement and transfer block as a creditor-protecting institute ... In: NZG , 2009, p. 1085.
  13. ↑ a b Martin Lenz: Consideration of pre-organizational reserves when calculating the distribution block. In: Handelsblatt , March 4, 2011.
  14. ↑ Bruno Kropff. In: Festschrift for Uwe Hüffer . 2010, p. 551.