Profit transfer agreement
With a profit transfer agreement , a German stock corporation or partnership limited by shares undertakes to a domestic or foreign company in any legal form to transfer the profit to the latter company. The profit and loss transfer agreement is a corporate agreement that has as its object the transfer of profits or the compensation of the loss of one company to or through the other company.
In addition to the domination agreement in Germany, the profit transfer agreement is regulated in AktG . Since the AktG only applies to the stock corporation and the partnership limited by shares, these provisions are not directly applicable to other corporations such as the GmbH. There is no regulation on company contracts in the GmbH Act. This loophole has been closed by case law. In its judgment of October 24, 1988, the BGH issued a detailed position on this and issued certain formal requirements for the effectiveness of a profit transfer agreement for the GmbH as a dependent company. The GmbH must expressly provide for the application of the stock corporation law in the company agreement.
The profit and loss transfer agreement is one of the so-called basic agreements of entry in the commercial register ( AktG) fall within the competence of the management board , after the general meeting has passed a positive resolution with at least 75% majority of votes. It must make a binding decision as to whether and with what content the contract should become effective. The contract must be in writing for both the AG / KGaA and the GmbH (Section 293 (3) sentence 1 AktG), there is no obligation to notarize. It only becomes legally effective when it is entered in the commercial register ( (2) AktG, Section 54 (3) GmbHG). The compulsory registration aims to inform the public (in particular shareholders and creditors) about existing ties with the company. The reporting and auditing obligations according to § 293 a – g AktG must be observed.AktG, in which the management and representation power of the board is limited according to § 83 paragraph 1 sentence 2 AktG. Only the conclusion of the contract and its subsequent registration for
Profit and loss transfer agreement
If there is a profit transfer agreement, the company to which the profit is to be transferred also has the obligation to assume the loss in accordance with(1) AktG. The minimum content of such a contract results from Section 291 (1) sentence 1 and (3) sentence 1 AktG, i.e. the duty of the dependent company to transfer the entire profit and the duty of the controlling company to compensate for losses ( (1) and 3 AktG). During the entire term of the contract, it must compensate for any annual deficit of the company obliged to transfer profits, unless this is compensated for by withdrawing amounts from the other revenue reserves that have been allocated to it during the term of the contract. Because of the loss assumption obligation automatically associated with profit transfer agreements, these corporate agreements are often referred to neutrally as profit and loss transfer agreements.
If a company is run for the account of another company, this also counts as a profit transfer agreement (Section 291 (1) sentence 2 AktG). A partial profit transfer agreement exists if it is agreed that only part of the profit or the profit of individual operations of the company is to be transferred to another company ((1) No. 2 AktG). If there is a partial profit transfer agreement, the special provisions on the obligation to assume losses and to protect creditors are to be applied accordingly. Because the profit transfer was only partially carried out, however, the loss must be taken over in the amount corresponding to the part of the profit transfer. Likewise, the amount of the obligation to pay is calculated based on the percentage of the profit that was paid. A company agreement in the form of a profit pooling is also possible (Section 292 (1) No. 1 AktG). According to this, a company can undertake to pool its profits or the profits of individual companies in whole or in part with the profits of other companies or individual companies of other companies in order to share a joint profit.
In total, stock corporation law has six company contracts. If at least one of these contracts is concluded between two companies, the law irrefutably assumes a group between these two companies in accordance with (1) sentence 2 AktG because they are to be viewed as being grouped under the same management. It is a so-called contract group because corporate contracts such as the domination agreement caused the group to be formed. As a rule, however, a so-called de facto group is also used, since company contracts are often linked to a majority stake. A profit transfer agreement alone does not constitute a de facto group, as the contract does not grant any management power. If uniform management exists at the same time, the profit transfer agreement has both a factual and a contract group.
Consequences of the profit and loss transfer agreement
The variable to be transferred between the parties according to the profit and loss transfer agreement is either the net profit or the net loss, as it would result in accordance with Section 268 of the German Commercial Code (HGB) if there were no profit and loss transfer agreement (fictitious net profit / loss). The profit is fictitious because the profit transfer agreement in the final commercial balance sheet of the dependent company means that a profit is no longer shown; rather, the amount to be paid appears here as a liability to affiliated companies on the liabilities side of the balance sheet, after it has been booked in the income statement as an expense in accordance with (3) sentence 2 of the German Commercial Code. Even according to the reverse of AktG, the profit transfer is included in the annual surplus and therefore does not constitute a use of the annual surplus in the sense of S. d. Paragraph 1, Clause 2 of the German Commercial Code (HGB). The profit to be transferred is additionally limited by the statutory reserves in accordance with German Stock Corporation Act and amounts blocked from distribution in accordance with (8) of the German Commercial Code.
Balance sheet profit and loss only arise on the balance sheet date , so that only the balance sheet profit or loss shown on the balance sheet date has to be transferred or offset. On the other hand, profits or losses during the year are not covered by the compensation obligation of a profit and loss transfer agreement. The balance sheet profit to be transferred is to be booked as an expense in the income statement ( (3) sentence 2 HGB) and appears on the liabilities side of the balance sheet as "Liabilities to affiliated companies" ( (3) No. C 6 HGB) . The loss to be compensated by the controlling company is the fictitious annual deficit, as it would have to be shown in Paragraphs 2 and 3 HGB, but which cannot actually arise due to the controlling company's loss assumption obligation ( Paragraph 3 HGB). Every loss, regardless of how it occurred, must be compensated due to the structural liability.
A profit and loss transfer agreement only gains its significance as a tax group agreement . It is a purely tax law contract and regulates the tax allocation of the income of the dependent company (the so-called controlled company) as the income of the controlling company (the so-called controlling company). The prerequisites for this are the profit and loss transfer agreement
- the financial integration of the controlled company into the controlling company (majority of voting rights; Section 14 (1) sentence 1 no. 1 KStG)
- Controlling company is taxable in Germany (Section 14 (1) Sentence 1 No. 2 KStG),
- Implementation of a profit and loss transfer agreement with a term of at least 5 years (Section 14 Paragraph 1 Sentence 1 No. 3 KStG)
A profit transfer agreement can only be canceled at the end of the financial year or the contractually specified accounting period, but it can be terminated for good cause without observing a notice period. An important reason exists in particular if the other party to the contract will probably not be able to fulfill its obligations under the contract (AktG).
Profit transfer agreements may be concluded retrospectively for the year in which they were entered in the commercial register, but they cannot be canceled retrospectively ((1) sentence 2 AktG). This latter provision is intended to prevent the claims of the creditors on the basis of the contract from § 303 AktG against the parent company from being retroactively eliminated. The (incidentally not constitutive) entry of the termination of a contract in the commercial register may result in a. also clearly show the time of termination ( AktG).
For reasons of creditor protection, there is an obligation to pay the debts of the company obliged to transfer profits even after the end of the profit transfer agreement ( (1) AktG). For example, the controlling company has to provide security to the creditors of the dependent company, whose claims have been substantiated before the entry of the termination of the contract in the commercial register is considered known, or to give them ( (3) AktG), if they are within report to him for this purpose six months after the announcement of the registration.
- BGHZ 105, 324
- BGH WM 1982, 86.
- BGH NJW 1989, 295.
- Klaus E. Herkenroth / Oliver Hein / Alexander Labermeier / Sven Pache / Andreas Striegel / Matthias Wiedenfels, corporate tax law , 2007, p. 42.
- Jens Kuhlmann / Erik Ahnis, corporate and transformation law , 2007, p. 260.
- Jens Kuhlmann / Erik Ahnis, Corporate and Transformation Law , 2007, p. 269.
- BGH WM 1993, 1087.
- an absolute guarantee according to § 349 HGB