Equity stake

from Wikipedia, the free encyclopedia

Under equity investment or equity investment (short participation ; English participation ) refers to the ownership of equity of a company .

Shareholders

Whoever holds the stake is called a shareholder ( shareholder or partner ). A shareholder is anyone who, as a natural or legal person, exercises the rights and obligations of an investor in a partnership or corporation . Essential rights are the right to vote and the right to profit-sharing ; the duties include in particular the duty of loyalty . In § 2 Co-Determination Act One is the legal definition contained, which among shareholders, the shareholders of joint stock companies , limited partners of limited partnerships , shareholders of limited liability companies , trades of mining law unions with legal personality and comrades of employment and cooperatives are understood.

Because of the lack of operationality of the concept of participation, there is a (rebuttable) presumption of participation in commercial law in Section 271 (1) sentence 3 of the HGB . According to this, capital shares of more than 20% in a corporation count as participation if they serve the continuous business operations of the company involved. "Serving" is brought about by establishing a permanent connection to the associated company ( Section 247 (2) HGB). Otherwise, the law assumes that a participation is permanent (Section 271 (1) sentence 1 HGB). If the stake is below 20%, it is still considered a stake if a "permanent connection" is intended. If there is an intention to sell or if only a financial participation is planned, it is not a "permanent connection".

You become a shareholder by buying shares or paying in the equity stake agreed with the company. If the shareholding to the company and final disposal, it causes the registration of the shareholder in the charge of the Companies Register, in particular the commercial register . This does not apply to public companies. The term shareholder is derived from the owner of capital shares. As the owner, he can exercise all ownership rights, in particular he can sell or encumber his shares; they can also be attached. The shareholder assumes rights and obligations. The rights include in particular co-administration and property rights. The co-administration right is primarily the voting right, which is usually associated with the capital share. It entitles the shareholders to participate in the resolutions of all shareholders and to exercise their voting rights. Property law mainly includes the right to share in profits. Obligations result from the duty of loyalty.

species

A distinction is made between different types depending on the percentage of the investor's participation in the company's total nominal capital ( participation rate ). A minority stake exists when the participation quota is below 50%, a blocking minority is usually present for participation quotas between over 25% and below 50%, since the articles of association and partnership agreements are usually used for particularly important resolutions (e.g. amendments to the articles of association) Provide a majority of 75%. Qualified majority participation exists with participation rates of 75% up to 95% and an integration participation (or squeeze-out participation) with participation rates between 95% and 100%.

Several legal consequences are linked to the level of the participation quota , in particular the influence and profit sharing. When exerting influence, it is important that there is no separation of capital shares and voting rights. However, such a separation is legally possible. A small contribution is only important if unanimity is required for decisions. Up to a participation quota of less than 10% one speaks of a free float participation . Only the blocking minority can block resolutions that require a qualified majority (usually 75% of all shareholders). If the participation rate is over 50%, resolutions for which a simple majority is intended can be brought about or prevented. A participation quota of at least 75% enables resolutions with a qualified majority. The integration participation of 95% enables minority shareholders to be excluded from stock corporations. Stock exchange reporting regulations also depend on the participation rates. The issuer and BaFin must be notified of the reaching, exceeding or falling below 3%, 5%, 10%, 15%, 20%, 25%, 30%, 50% and 75% of the voting rights ( section 33 (1) sentence 1 WpHG ). In the case of stock corporations there are minority rights, e.g. For example, shareholders who (also jointly) hold 5% of the shares can request that a general meeting be called (Section 122 (1) AktG).

With regard to the knowledge of third parties about the participation, a distinction can be made between open and silent participation. While the open participation is recognizable for everyone in the annual financial statements , the silent participation (also called silent partnership ) is neither recognizable from the annual financial statements nor from the commercial register . The liability of the silent partner is limited to his participation ( Section 232 Paragraph 2 HGB), whereby he is neither entitled nor obliged by the concluded transactions ( Section 230 Paragraph 2 HGB) and in the legal case also participates in the loss ( Section 231 Paragraph 2 HGB).

In particular with regard to tax issues, the participation in the box in connection with the so-called box privilege is important. Mutual holdings of companies in one another are called cross- holdings .

shape

As a rule, the open participation consists of a cash contribution . The shareholder makes this contribution by transferring the required amount of capital to the company for its free and final disposal. The company notifies the transfer of capital to the commercial register, which makes a corresponding entry in the ownership structure. Contributions in kind are rarer, in which the company surrendered assets that can be contributed , valued and transferred . With the final and complete payment of the cash or non-cash contribution, the shareholder is released from liability.

Balance sheet report

In the case of investments, the "permanent connection" is important. This is usually the case if the shareholder has an entrepreneurial interest in promoting his own business operations beyond the intention to invest on a long-term basis. Actual corporate influence (pursuant to Section 311 (1) AktG) is an indication of a permanent connection. In the case of a "permanent connection", the investment is to be accounted for in fixed assets . According to Section 247 (2) of the German Commercial Code (HGB), fixed assets include all assets that are “intended to continuously serve business operations”. Section 266 (2) A III HGB provides for the balance sheet item “Financial assets” for such investments . There are two types of subdivision, namely "shares in affiliated companies" and "participations". However, if only a financial investment is intended or if there is an intention or the possibility of a sale, the shares must be shown as current assets (Section 266 (2) B III HGB as “shares in affiliated companies”).

rating

Participations are to be accounted for at acquisition cost ( Section 255 (1) HGB). In addition to the purchase price , the acquisition costs also include ancillary costs such as notary and legal advice costs or stock exchange and broker commissions. As with all fixed assets, the moderate lowest value principle applies to ongoing valuation . According to this, impairments compared to the book value of an investment only lead to unscheduled depreciation if the impairment is permanent. Increases in value, for example through retention of profits, can be taken into account with the help of write-ups - but only up to the amount of the original acquisition costs.

taxation

The taxation of participations and dividends from this is regulated very inconsistently worldwide. Even in individual EU countries there are very heterogeneous regulations.

Germany

  • In the case of an entrepreneurial participation, the private shareholder who is liable to income tax must subject the dividends received to the flat rate tax . This also applies to the profits from the sale of shares, provided that the participation quota was below 1%. With a participation rate of 1% and above, the partial income method applies . 40% of the dividends are tax-free ( Section 3 No. 40 EStG), the remaining 60% are subject to the normal rate.
  • If a domestic corporation receives dividends from a domestic participation, these are not taxed under Section 8b (1) of the KStG, whereby under Section 8b (5) of the KStG, a non-deductible operating expense of 5% of the dividend is provided. The result is a 95% dividend exemption.

Austria

In Austria, the taxation of capital assets was reorganized at the beginning of 2011. The new provisions provide that, in addition to the previous capital gains tax (KESt) on interest, dividends and fund income, price gains from capital assets (e.g. from stocks, bonds, fund shares, GmbH shares, etc.) and derivatives (e.g. certificates ) are subject to capital gains tax of 25% (since January 1, 2016 27.5%). Exchange rate gains have only been subject to capital gains tax since April 2011.

Switzerland

At the federal level, the so-called privileged taxation of dividends came into force in January 2009. The cantons are free to tax dividends at a privileged rate. In the partial taxation procedure, the tax relief for investments in business assets is 50%, dividends from investments in private assets are relieved by 40%.

See also

literature

  • Till Fock: UBGG. Corporate Holding Companies Act. Law and taxes of the private equity business . Comment. CH Beck, Munich 2005, ISBN 3-406-52625-X .
  • Lothar Vollmer, Thomas Elser: UBGG. Commentary on the Unternehmensbeteiligungsgesellschaftsgesetz with explanations on the taxation of corporations / corporate investment companies. Erich Schmidt Verlag, Berlin 2005, ISBN 978-3-503-08744-0 .

Individual evidence

  1. ↑ Henner Schierenbeck: Grundzüge der Betriebswirtschaftslehre , 2005, p. 49
  2. ^ Anton Burger / Philipp Ulbrich / Niels Ahlemeyer: Beteiligungscontrolling , 2011, p. 132
  3. ↑ a b Peter Ulmer: HGB accounting law , part 1, 2002, p. 733.
  4. ^ Wilhelm Frick: Accounting according to the company law , 2007, p. 161
  5. ↑ Wolfram Scheffler: Taxation of Companies III , 2013, p. 159
  6. ↑ Heinz Kußmaul: Betriebswirtschaftliche Steuerlehre , 2013, p. 452
  7. ↑ Public-Private-Partnership on archiv.labournet.de of December 18, 2012, accessed on January 2, 2017.