Economic approach
The economic approach ( English substance over form is) a principle of balance sheet , commercial and tax law , according to which accounting matters in doubt after the economic result and less on their shape must be assessed.
General
Economic issues usually contain economic and legal aspects, the results of which often do not match. Even with the accounting and taxation to business transactions are judged by legal or economic criteria. This is especially true where ownership and possession of the same thing fall apart. Then, in the case of companies that are subject to tax and accounting, the legal question arises as to whether the owner or owner has to account for an asset . This priority question is answered by commercial and tax law. An economic approach is not constitutionally objectionable.
In the context of the interpretation of commercial law standards, the economic approach represents a teleological interpretation of legal regulations and serves to assess facts. Shops are therefore by their substance and economic reality ( English actual substance and not () to formal legal criteria English legal form ) to assess and present.
Commercial and tax law
Since the Accounting Law Modernization Act of May 2009, Section 246, Paragraph 1, Clause 2 of the German Commercial Code ( HGB ) regulates that assets must be included in the owner's balance sheet. However, if an asset is not economically attributable to the owner but to another, the latter must show it in his balance sheet. This regulation is in conformity with tax law, according to which, according to § 39 AO , economic goods are to be attributed to the owner; However, if another owner can as a rule economically exclude the owner from affecting the asset for the normal period of use , then ownership is to be assigned to this owner.
Illegal and immoral legal transactions are legally void , but must nevertheless be subject to taxation as if they were legally effective . Therefore, § 40 AO and § 41 AO regulate the tax effectiveness of legally void legal transactions.
species
The economic approach particularly concerns retention of title , assignment by way of security , finance leasing or sham transactions .
- Retention of title : Affected are its subspecies simple, extended or extended retention of title. A booking of the goods issue by the seller may already take place if the beneficial ownership of the goods lies with the buyer, i.e. if the goods have been delivered to him with retention of title. Correspondingly, the incoming goods may already be booked at the buyer if the goods were acquired with retention of title or if they are stored at the disposal of the buyer with a third party ( warehouse keeper ).
- Transfer by way of security with its variant of the transfer of ownership of motor vehicles by way of security : In the case of security assignment, the security buyer becomes formally the owner, but leaves the security provider with possession and use on the basis of a security agreement , so that the latter is considered the beneficial owner.
- Finance leasing (with the subtypes of sale-lease-back and cross-border leasing ): According to the leasing decree of the Federal Ministry of Finance , the leased object is assigned to the lessor in finance leasing if the basic leasing period is between 40% and 90% of the useful life and the Contract either does not include an option right or, if the purchase option has been agreed, provides for a purchase price that is greater than or equal to the residual book value or provides for an extension option and the follow-up leasing is higher than the straight-line depreciation rate of the list price . In the case of operational leasing , the leased object must be activated by the lessor .
- Sham transactions : are void under civil law , but the resulting tax liability remains in accordance with Section 41 (2) AO.
Even in cases of usufruct , the civil-law owner of a piece of land or the same rights as the land and the beneficial owner can be different.
Abuse of design
Another facet of the economic approach is the so-called misuse of design . This is the case if the contractual arrangement was only chosen to save taxes. The taxation is therefore not based on the improperly chosen contractual structure, but according to what would have been the case if the structure had been appropriate to the economic situation ( Section 42 AO).
International
In Switzerland , the economic approach is derived from Art. 958 Paragraph 1 OR , according to which the accounting should present the economic situation of the company in such a way that third parties can form a reliable judgment. In Austrian tax law, the principle of the economic approach is regulated in Section 21 of the Federal Tax Code (BAO).
According to IAS 1.20b is the management to ensure that the accounting reliable information includes, reflecting the substance of the transactions rather than their legal form ( English substance over form ). To retention of title ( English retention of title ) is therefore not the goods from suppliers accounted for, but by the buyer. The the collateral property corresponding English "furniture mortgage" ( English chattel mortgage ) (sec. 9 Bill of Sale Act) will continue the protection seller and not from banks accounted for, even if they - unlike the security transfer - accessory is. In finance leasing , a purchase is assumed if all rights and obligations have been transferred to the lessee or if there is a purchase option with a purchase price above the residual book value. Operational leasing is assessed like rent , so that the lessor has to capitalize the objects (IAS 17).
Others
According to Section 2 (1) of the Interest Information Ordinance , “beneficial owners” are any natural person who receives an interest payment or an interest payment in their favor, unless they can prove that they did not receive the payment for themselves or they was not done in their favor.
Individual evidence
- ↑ BVerfG, judgment of December 27, 1991, Az .: 2 BvR 72/90
- ^ Karl Larenz / Claus-Wilhelm Canaris , Methods of Law , 1995, pp. 149 ff.
- ↑ Günther legs, The accounting of accounts receivable in commercial, industrial and banking operations , 1960, p. 36 f.
- ↑ Gabler Wirtschaftslexikon, Volume 6, 1984, Col. 2139
- ^ Income tax treatment of leasing contracts for movable assets , BMF letter of April 19, 1971 - Az .: IV B / 2 - S 2170 - 31/71, BStBl I p. 264
- ↑ § 21 BAO
- ↑ Iris Oldenburger, The accounting of repurchase agreements according to HGB, US-GAAP and IAS , 2000, p. 87
- ^ Humphrey Waldock , The Law of Mortgages , 1950, p. 75
