Operation of a commercial nature

Businesses of a commercial nature (BgA) are the commercial business operations of legal entities under public law .

Germany

The term includes all facilities that serve a sustainable activity to generate income outside of agriculture and forestry and that stand out economically within the overall activity of the legal person. The intention to make a profit and participation in general economic transactions are not required (see Section 4 (1) KStG and R 4.1 KStR ).

Businesses of a commercial nature do not include businesses that primarily serve to exercise public authority ( sovereign businesses ) and special-purpose businesses (cf. Section 4 (5) sentence 1 KStG and R 4.4 KStR).

Businesses of a commercial nature run by legal entities under public law are subject to unlimited corporation tax (cf. § 1 Paragraph 1 No. 6 KStG).

In the case of a commercial operation, there may also be a hidden profit distribution (H 8.5 KStR).

If the sponsoring body leaves the business of commercial assets to the business, which represent the essential basis of the business , the principles established for the business division are to be used.

Austria

In Austrian tax law, businesses of a commercial nature are described in Section 2 of the Corporate Income Tax Act: These are economically independent businesses that carry out a private business activity "of economic importance" to generate income or, in the case of lack of participation in general economic activity, other economic advantages exercise outside of agriculture and forestry. The intention to make a profit is not required. (§ 2 Paragraph 1). A business of a commercial nature is also subject to unlimited taxation if it is itself a corporation under public law (Section 2 (5)). The activity of the facility is always considered to be a commercial enterprise for tax purposes. A BgA does not exist if it is a sovereign enterprise . The sovereign operations include in particular waterworks if they mainly serve to supply drinking water, research institutes, weather stations, cemeteries, institutions for food inspection, disinfection, corpse cremation, garbage disposal, street cleaning and the removal of rinsing water and waste. (Section 2, Paragraph 5).

Jurisprudence

BFH of March 13, 1974 , Az.IR 7/71, BStBl. 1974 II p. 391
BFH of May 17, 2000 , Az.IR 50/98, BStBl. 2001 II p. 558
BFH of April 24, 2002 , Az.IR 20/01, BStBl. 2003 II p. 412
BFH of July 9, 2003 , Az.IR 48/02, BStBl. 2004 II p. 425
BFH of July 12, 2012 , Az.IR 106/10

Individual evidence

↑ BFH, judgment of March 14, 1984 , Az. IR 223/80, full text = BStBl. 1984 p. 496 and H 8 KStR.

[1] BFH, judgment of March 14, 1984 , Az. IR 223/80, full text = BStBl. 1984 p. 496 and H 8 KStR.