Profit company

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The non-profit GmbH ( gGmbH ) is a company with limited liability under German tax law , whose income is used for non-profit purposes. Therefore, a non-profit GmbH as a corporation according to § 55 Abs. 1 Nr. 1 Satz 2 AO ( Tax Code ) in connection with § 5 Abs. 1 Nr. 9 KStG is from the corporation tax and in connection with § 3 Nr. 6 GewStG from the trade tax freed. The choice of the legal form GmbH is often made by non-profit companies that want to be economically active (e.g. kindergartens, social stations and hospitals), which can sometimes be difficult in the legal form of a registered association. In addition, as a corporation, the GmbH allows greater flexibility than the member-based association .

The gGmbH is wholly or partially exempt from certain taxes, provided that its articles of association and actual management meet the requirements of non-profit law . The profits of a gGmbH must be used for the non-profit purpose (or the non-profit purposes) and may not be distributed to the shareholders. As an exception, a profit distribution is only permitted if the shareholders are themselves charitable. The use of tax breaks is based on §§ 51 ff. AO , the public benefit is recognized by the responsible tax office .

The gGmbH is also subject to the provisions of the GmbH Act and the provisions of the Commercial Code (HGB). The non-profit activity is indicated by the use of the small letter “g” in front of the designation GmbH ; often the long form "non-profit GmbH" is used. This is to distinguish the gGmbH from commercially active GmbHs operating with the intention of making a profit. The use of the name gGmbH has been permitted since March 29, 2013. Article 7 of the Act on Strengthening Voluntary Work of March 21, 2013 (Federal Law Gazette I 556) included a corresponding section 4 sentence 2 in the GmbHG . The statutes of the gGmbH can be designed so that a change of purpose is only possible under special conditions. In this way, the gGmbH can be functionally approximated to a foundation. However, foundation law does not apply to a foundation gGmbH. It is also not subject to the state supervision of foundations . However, it often happens that charitable foundations are shareholders in non-profit limited liability companies. However, the foundation and the GmbH are also separate legal entities here .

structure

In partnership agreement (statute) of the gGmbH the corporate structure elements of the GmbH are connected to the requirements of the non-profit law. In addition to the requirements of the GmbH Act , the articles of association must meet the requirements of non-profit law according to § 52 AO so that the non-profit status is recognized.

  • The society must have a charitable , charitable or church corporate purpose (or several such purposes).
  • The corporate purpose must consist of activities to fulfill this tax-privileged purpose.
  • The purpose must be selflessly, exclusively and immediately pursued.
  • The articles of association must state that the company's assets - with the exception of the capital contributions - are not distributed to the shareholders if the company is dissolved or the tax-privileged purposes cease to exist, but to another tax-privileged corporation ( asset allocation ). A distribution to the company's own shareholders is only permitted if they are themselves charitable.

The legislature added a model statute for non-profit corporations in the annex to § 60 AO . Although the tax authorities sometimes require a verbatim adoption of the model statutes, in practice it is mostly assumed that such strict formal requirements cannot be required.

The entrepreneurial company (limited liability) , which has been known since 2008 as a mini GmbH and German counterpart to the English limited company, is also possible in a non-profit variant. The non-profit entrepreneurial company is not a separate legal form, but a special form of the gGmbH and the GmbH Act is applicable to it. However, they do not have the option of using the legal form suffix "gGmbH" as a non-profit limited company.

Tax handling

The advantages of the gGmbH are in particular the exemption from corporation tax and trade tax , as well as the authorization to issue donation receipts for donations . These confirmations entitle the donor to deduct special expenses . For services in the ideal range , the applicable sales tax for services purpose plants often the reduced VAT rate applies from currently 7% so far as benefits is not covered in § 4 UstG are fully exempt or Art. 132 et seq. Of the VAT Directive from VAT.

The gGmbH combines the advantages of the typical GmbH with the tax advantages offered by the non-profit law. It is a legal structure between the non-profit and the for-profit sector. For example, voluntary work at the gGmbH is regularly replaced by full-time managing directors .

literature

  • Buchna / Leichinger / Seeger / Brox: Charitable status in tax law, 11th edition 2015, Erich Fleischer Verlag, Achim, ISBN 978-3-8168-4041-1
  • Wilhelm Ermgassen: The non-profit GmbH. Bremen 2006, ISBN 978-3-8324-9354-7 .
  • Thomas von Holt, Christian Koch: Non-profit GmbH. Beck's model contracts. Volume 50, 2nd edition, Munich 2009, ISBN 978-3-406-58181-6 .
  • Claudia Ossola-Haring, Markus Arendt: The GmbH with municipal participation and the non-profit GmbH: manual for managing directors and shareholders. 3rd edition, Stuttgart a. a. 2009, ISBN 978-3-415-04262-9 .
  • Andreas Rohde, Lutz Engelsing: The non-profit GmbH. Bonn 2006, ISBN 3-936623-21-X .
  • Stephan Schauhoff (Hrsg.): Handbook of the non-profit. Association, foundation, GmbH - law - taxes - personnel. 3rd edition, Munich 2010, ISBN 978-3-406-59794-7 .
  • Stefan Winheller, Petra Oberbeck: The non-profit entrepreneurial company. The mandatory reserve according to § 5a Abs. 3 GmbHG as a stumbling block? DStR 11/2009, p. 516 ff. ( PDF; 944 kB )
  • Stefan Winheller: Financial management recognizes the non-profit entrepreneurial company. NWB 24/2009, p. 1812 f.

Individual evidence

  1. ^ KG Berlin of January 18, 2011, 25 W 14/10, ZStV 2012, 62; KG Berlin from January 20, 2011, 25 W 35/10 , BeckRS 2001, 07425; KG Berlin of March 7, 2012, 25 W 95/11 , DStR 2012, 1195; KG Berlin from June 23, 2014, 12 W 66/12.
  2. ↑ Approving the Berlin case law: Winheller, DStR 2012, 1562; a. A. Menges, ZStV 2012, 63.
  3. ↑ Appendix 1 to § 60 AO. From: dejure.org , accessed May 5, 2015.
  4. ↑ Baden-Württemberg state jurisprudence database : judgment of the Karlsruhe Higher Regional Court with decision of April 26, 2019, AZ: 11 W 59/18 (Wx) .