In addition to the share capital (or “subscribed capital”), which is largely constant, the legislature has also created reserve items belonging to equity, which also serve to protect creditors, but are of a variable nature. This includes the entire reserves . The revenue reserve is part of the open reserves. These are to be shown separately from one another in accordance with the classification rule in (3) HGB . After the share capital comes the capital reserve and then the revenue reserve with its various subtypes.
The sub-types of the retained earnings are finally listed in(3) HGB:
- Statutory reserve : according to AktG , the stock corporation and the limited partnership on shares have to transfer 5% of the annual surplus - reduced by any loss carryforward - to the statutory reserve until this together with the capital reserve (according to (2) No. 1 to 3 HGB) reaches 10% of the share capital . According to Para. 3 No. 1 GmbHG, entrepreneurial companies have to put a quarter of the annual surplus, reduced by a loss carryforward from the previous year, into the legal reserve. para. 2
- Reserve for "shares in a controlling or majority-owned company" : According to (4) of the German Commercial Code (HGB), the amount corresponding to the amount of shares in the controlling or majority-owned company on the assets side is to be entered into this reserve. The reserve is to be released if these shares are sold or withdrawn or if a lower amount is otherwise set on the assets side.
- Statutory reserves : can be set up in addition to the statutory reserve if the company's articles of association provide for this ( AktG) and
- other revenue reserves are a residual amount that is not included in the above reserve types .
The capital reserve is included in the calculation of the statutory reserve, while the statutory reserves and other revenue reserves cannot regularly be part of the statutory reserve.
Since May 2009, "reserves for shares in a controlling or majority-owned company" must be formed as a so-called re-participation and viewed economically in connection with own shares. In contrast, own shares held by a corporation are now to be deducted from equity ( group companies held in accordance with , AktG are to be shown as retained earnings. From the point of view of the dominating or majority-owned company, it does not matter whether it holds its own shares or whether they are held by a dependent or majority-owned company. This regulation fills a previous loophole in the law and is a distribution block , as any losses at the controlling or majority-owned company affect the valuation of the capitalized shares in the controlled company. If the value of these shares falls, the retained earnings must be reduced accordingly, so that the distributable net profit falls.(1a) of the HGB). The shares in
Revenue reserves are to be endowed from the annual surplus of the past financial year or earlier financial years; In this respect, profits are not distributed, but retained ((2) and (3) HGB). The formation of the revenue reserves is therefore made from taxed profits. If annual surpluses are generated, there is a compulsory allocation to the statutory reserve for stock corporations and limited partnerships on stocks. However, there is an option for statutory and other reserves. Once the legal reserve has reached 10% of the subscribed capital, the legal obligation to make contributions ends. According to (4) HGB, the formation or change of revenue reserves may only be reported after the item “Annual surplus / net loss” ( (3) No. 19 HGB). This makes it clear that the formation of revenue reserves represents a use of profit.
The shareholders' meeting of a GmbH can also transfer the entire annual surplus to the revenue reserves ( (2 ) GmbHG ) so that no net profit is reported. The net profit therefore does not show the company's actual success, but the part remaining after the appropriation of the profit that is available for a distribution.
The release of retained earnings is subject to strict conditions ( increase capital ( (4) No. 3 AktG). If there are no losses to be offset, the other retained earnings can be used freely, for example to increase capital or to distribute dividends if the annual surplus is insufficient ( dividend continuity ).(3) and (4) AktG). If the revenue reserves together with the capital reserves have not yet reached the amount of the legally required reserves, they may only be used to cover losses if both the profit carried forward and other revenue reserves are not sufficient for this ( (3) AktG). If the reserves exceed the legally required minimum limit, they may also be used to
In transferred to other revenue reserves during the term of a profit transfer agreement . The law wants to give an incentive not to transfer all profits accrued during the contract period, but rather to store them in revenue reserves. However, this exception only applies to retained earnings and not to additions to capital reserves.(4) of the German Commercial Code (HGB) it is expressly ordered that the release of reserves is only to be shown after the item “Annual surplus / net loss” ( (2) No. 20 and Section 3 (3) No. 19 HGB as the result of the income statement). This means that the release of reserves is subject to a transfer ban. An exception to this is provided for in sentence 2 AktG in the event that amounts have been
(3) of the Austrian Commercial Code (UGB): Only amounts may be shown as revenue reserves that were formed from the annual surplus in the financial year or in an earlier financial year after taking into account the change in untaxed reserves. The revenue reserve represents internal financing. As a basis for calculating the revenue reserve, the release of untaxed reserves must be added from the annual surplus / annual deficit (profit after taxes or loss) and the allocation to untaxed reserves subtracted. This amount can then be added to the retained earnings (allocation to retained earnings to retained earnings).
When it comes to retained earnings, a distinction must be made between statutory, statutory and free:
Legal reserve Section 229 (6) of the Austrian Commercial Code (UGB): An amount is to be allocated to the legal reserve that corresponds to at least 5% of the annual surplus reduced by a loss carryforward after taking into account the change in untaxed reserves, until the amount of the tied reserves in total 10% or that in the articles of association has reached a certain higher part of the nominal capital.
Statutory reserve: Can be regulated in the articles of association of the corporation.
Free reserve: Can be determined by the body deciding on the annual financial statements (usually the board of directors with the approval of the supervisory board). This controls the distribution potential. Allocations to and release of revenue reserves represent measures for the appropriation of profits and therefore do not affect income tax! However, this reduces the reported and consequently distributable profit. Only the remaining profit is available to the shareholders for distribution.
- Heiner Hahn / Klaus Wilkens, Accounting and Balance, Part B: Accounting , 2000, p. 108
- Inge Wulf, Balance Training , 2010, p. 280
- Georg Wörner, commercial and tax balance sheet according to new law , 2003, p. 217
- Bruno Kropff in Geßler / Hefermehl / Eckardt / Kropff, Aktiengesetz , § 301 margin no. 18 with reference to the reasons for the law