Deposit (accounting law)
A contribution is understood as the transfer from the private assets of an entrepreneur to his sole proprietorship or the transfer from the private assets of a partner to the assets of the company . This increases the equity of the company or society. In partnerships and sole proprietorships, the deposit is also referred to as a private deposit . The opposite is the extraction .
Usually, the shareholders undertake in the social contract , on the occasion of the foundation to make society a specific contribution to the company with the necessary capital to equip. Subsequent contributions can be made on the basis of a statutory obligation (obligation to make additional contributions ), on the basis of an agreement between the shareholders (shareholders' resolution) or spontaneously. For partnerships, a minimum level of equity is not provided, so that they do not have a fixed equity in the sense of the share capital or the share capital . The reason is that at least one partner has unlimited liability for corporate debts with his private assets . In the case of corporations, on the other hand, the liability is mostly limited to the existing equity, so that the legislature felt compelled to prescribe a minimum level.
Deposits can be made available to a company or sole proprietorship in various ways. They can be provided as a cash contribution, contribution in kind, transfer of use or a service.
- Cash deposits are the most common form and can be made by cash or bank transfer on behalf of the company. It is also considered a cash contribution if a third party makes a payment to the company for the account of the shareholder.
- In the case of contributions in kind , the shareholder transfers ownership of material entities or individual assets ( land , buildings , securities , machines , inventories , receivables or intangible, capitalizable assets such as patents , licenses or copyrights ) to the company.
- In the case of transfer of use , the shareholder does not transfer his assets to the company on account of ownership, but allows it to use the objects free of charge. The contribution in kind arises in the amount of a fictitious rent payment. Surrender of use to corporations are only recognized for tax purposes if the transferring partner is the sole shareholder or if the transfer of use corresponds to his participation quota.
- Services such as free management are only permitted as a deposit in partnerships. The contribution in kind arises in the amount of a fictitious manager's salary. In the case of the GmbH, the Federal Court of Justice (BGH) ruled out the ability to make contributions in kind for services in accordance with (4) GmbHG , which it later expanded to include the AG.
- A hidden contribution in kind is the circumvention of the provisions of (4) GmbHG or (3 ) AktG by allegedly making a cash contribution, but with the agreement to allow the cash to flow back promptly as consideration for an asset of the shareholder.
In commercial law is simply of the deposit's speech, without a legal definition offering. It is not possible to understand whether the legislature thought more of the liability sum or of the compulsory contribution. The legal comments assume that the deposit is to be understood as the amount of liability entered in the commercial register. Company law also speaks of deposits. The most important duty of the shareholder is to make his contribution in accordance with (1) AktG; as a rule, this must be fulfilled by the first purchaser of a share ; Contributions may not be returned to shareholders ( (1) sentence 1 AktG). The difference between the contribution made and the nominal amount of the subscribed capital is to be recorded separately in the balance sheet as an “outstanding contribution” ( (1) HGB ). In GmbH law there is talk of the business share. In Paragraph 1 No. 4, Paragraph 2, Paragraph 2 and Paragraph 1 No. 3 GmbHG, the term business share is used uniformly. (2) GmbHG speaks of the share on which a contribution is to be made according to sentence 1 GmbHG. Jurisprudence and literature understand this to mean the entirety of all property and personal rights and membership rights and obligations of a partner. The liability of the partner is limited to his contribution ( Paragraph 1 Clause 2 AktG, Paragraph 2 GmbHG, for the limited partner Paragraph 1 HGB). If the partner who is only liable with his contribution (limited partner: Paragraph 1 Clause 2 HGB, or the partners of corporations) has made the contribution, he is released from liability.
As a rule, depending on the legal form, a deposit is linked to the depositor's control, information and codecision rights. Control rights can be exercised via supervisory bodies, information rights are only limited ( (1) HGB: the silent partner and limited partner can request the annual financial statements). Most important are the codecision rights that a deposit grants. They are exercised through voting rights, for example in the shareholders or general meeting; The exception is the non-voting preference share .
From the point of view of the depositor, the contribution to a company increases the acquisition costs for the participation in this company. The investment is then shown in the balance sheet with a higher book value.
From the point of view of the company or sole proprietorship in which a contribution is made, the contribution increases its assets. A cash contribution increases the cash in hand or the bank balance, a contribution in kind increases other assets. The contribution in kind can be reported at fair value or at the previous book value. Corresponding to the increase in assets, equity increases on the liabilities side of the balance sheet.
The tax law describes as deposits "all assets (cash deposits and other assets) that the taxpayer has contributed to the business in the course of the financial year" ( Abs. 1 Satz 8 EStG ). It is necessary that the economic good is transferred to a business asset . This abstract definition also includes contributions in kind and deposits of negative assets (debts).
The deposit value is the value with which the deposit is recognized in the tax balance sheet. The valuation is important for the taxation of those in whose business assets the economic good is deposited. The higher the deposit value, the higher the future depreciation of depreciable assets and the lower the later capital gain. Correspondingly, a high value may cause a high amount is taxable if the asset already tax the depositor the depositor involved was.
Partnerships and sole proprietorships
The valuation of the contribution in a partnership or a sole proprietorship is regulated by partial value . If the asset was acquired within three years prior to the contribution or if it is a participation in accordance with EStG, the contribution is made at the current value, but at most at the amortized cost.(1) No. 5 EStG. The deposit value is usually the
The depreciation assessment basis is basically the investment value, but if it was previously used to generate income in private assets, it is always the amortized acquisition or production costs.
- Income from renting and leasing : deposit of a rental apartment
- Income from employment : Contribution of a PC used for the employment relationship
The open contribution to a corporation is considered to be an exchange transaction for tax purposes: The investor sells the assets to be invested to the company and receives a stake in the company in return. The contribution is valued at the fair value of the asset ( (6) sentence 1 EStG).
A hidden contribution exists if a partner or a person closely related to him provides the company with a financial advantage outside of the contributions under company law and this contribution is caused by the corporate relationship (R 8.9 KStR ). It does not increase the income of the corporation ( (3) sentence 3 KStG ). For the tax consequences for the person making the deposit, the deposit is generally valued at the partial value ( (6) sentence 2 EStG).
In both cases, the tax deposit account of the corporation increases by the value of the deposit.
Private deposits in a sole proprietorship or a partnership are booked via the private account, which is a sub-account of the equity account. Does the social contract for a better overview two private accounts before, retail deposits are recognized in the variable capital in the capital account II. Private deposits increase equity, private withdrawals reduce it; both have no impact on earnings. The operational success must not depend on whether funds are used for private purposes or left to the company.
Capital contributions within the meaning of Art. 20 Paragraph 3 of the Federal Act on Direct Federal Taxes (DBG) and Art. 5 Paragraph 1 et seq. Of the Federal Law on Withholding Tax (VStG) apply to deposits, premiums and grants which are made directly by holders of participation rights and are booked and openly disclosed in the trade balance sheet of the receiving corporation or cooperative (open capital contributions). Under private law, the capital contribution causes a change of ownership of the funds deposited. The capital contribution increases the assets of the legal person. The capital contributors are not depleted because at the same time the value of their participation rights (shares, ordinary shares) increases. Capital contributions are made
- on the share or share capital by payment upon establishment or a capital increase,
- into the open reserves by paying premiums ( agio ) for capital increases or other capital grants or
- into the hidden reserves , in that the GmbH / AG is supplied with funds from the shareholders without these being recorded in an account in the accounting. In this context one speaks of a hidden capital contribution. Such is the case, for example, when a GmbH / AG acquires a property at a price below the market value and then lists it at its actual value in the balance sheet.
Austrian law is similar to German law with regard to deposits.
- BFH, judgment of March 28, 2000, Az. VIII R 68/96, full text = DB 2000, 1738.
- BGH, judgment of February 16, 2009, Az. II ZR 120/07, full text = DB 2009, 780; "Qivive judgment"
- BGH, judgment of February 1, 2010, Az. II ZR 173/08, full text .
- Hermann Staub / Wolfgang Schilling , Großkommentar HGB , 4th edition, (fn. 4), § 172 marginal note 1
- Götz Heuck , Corporate Law , 19th edition, 1991, p. 264
- so already RG , judgment of April 18, 1913, Az. Rep. II 659/12, guiding principle = RGZ 82, 167, 169.
- Korn / Strahl in Fuhrmann / Kraeusel / Schiffers, 360 ° eComment, From VZ 2016, § 6 EStG, Rn. 527
- Günter Wöhe / Heinz Kußmaul : Fundamentals of bookkeeping and accounting technology , 2012, p. 94.