Tax union agreement
The tax unity agreement is a term used in German tax law that regulates the tax unity and can be the result of corporate agreements at group companies . A tax group is understood to mean the joint tax treatment of subsidiaries of a group. Sometimes corporate contracts are also referred to as tax group agreements; However, they are also effective without a tax group, but only develop their full benefit if a tax group is agreed.
Legal bases
Company law provides for a summary of the economic results of legally independent companies in the provisions on company contracts (§ § 291 ff. AktG) ( profit transfer agreement ). Tax law follows this economic approach and summarizes the results of two or more companies that form an economic unit in accordance with tax law requirements. Several legally independent companies are taxed as if they were a single tax payer . This can prevent any multiple burdens within the group ; In particular, loss compensation can be achieved between the members of the tax group.
Tax group is a purely tax law term and relates to the taxation of companies for the purposes of corporation tax ( Section 14 KStG, R7 KStR), trade tax ( Section 2 (2) sentence 2 GewStG, section 14 GewStR) and sales tax (Section 2 (2) No. 2 UStG, Section 21 UStR). In terms of tax law, it is pretended that subsidiaries (so-called controlled companies ) - legally independent - would form a single, taxable company with the parent company (so-called controlling company ).
Controlling company and controlled company
Controlling Company can a fully taxable natural person , a non-exempt corporation , association of persons or partnership to be. Furthermore, a domestic branch of a foreign commercial company registered in the commercial register can also be a controlling company. The parent company must be commercially active, so that the requirements for a commercial enterprise must be met. This is always the case with corporations ( Section 8 (2) KStG). Partnerships (in which natural persons can be involved), on the other hand, can only be parent companies if they are originally commercially active in accordance with Section 15 (1) Sentence 1 No. 1 EStG and hold the shares in the corporation themselves (Section 14 (1) Sentence 1 No. 2 and sentences 2 and 3 KStG).
As controlled companies only get legal entities (especially corporations) in question so that specifically the legal form of joint stock company or KGaA (1 § 14 para. 1 sentence CITA) or GmbH ( § 17 sentence 1 Corporation Tax Act) must be present. Partnerships as well as life and health insurances (Section 14 (3) KStG) cannot be affiliated companies.
Controlled companies are financially, economically and organizationally integrated into the company of the controlling company according to the overall picture of the actual circumstances:
- Financial integration : The controlling company has a stake of more than 50 percent in the controlled company - also indirectly;
- Economic integration : The subsidiary company is economically active in accordance with the will of the entrepreneur within the framework of the company as a whole, in close economic connection with it, promoting and supplementing;
- Organizational integration : The controlling company ensures through organizational measures that its will is actually carried out in the controlled company.
The overall picture of the actual circumstances resulting from the three integration facts is decisive. A tax group can also exist if the integration of one of these facts is not completely complete, but is all the more clear in the other areas.
Requirements for a tax group
A corporation becomes a subsidiary of another company as soon as the controlling company has held a majority of the voting rights in it without interruption since the beginning of the financial year (financial integration; Section 14 (1) No. 1 KStG) and it has signed a profit transfer agreement with the controlling company for a term of has completed at least five years (Section 14 (1) No. 3 KStG). In contrast to sales tax, economic and organizational integration is not required for corporation tax. A person with unlimited income or corporation tax liability as well as a domestic branch of a foreign company (§§ 14 Paragraph 1 No. 2, 17, 18 KStG) can be considered as controlling entities. Special features apply to partnerships as the parent company (Section 14 (1) No. 2 KStG).
The controlled company may only transfer amounts from its annual surplus to its reserves to the extent that this is economically justified on the basis of prudent business judgment , so that the profits generally have to be distributed to the controlling company (Section 14 (1) No. 4 KStG).
consequences
Apart from the different taxation objectives of the three laws, these regulations have in common that the controlled companies are regarded as a single company together with their controlling company and this company is taxed as a whole. The domestic parts of the company united in the group are treated as one entrepreneur within the meaning of § 2 UStG. Profits and sales within the group are therefore not taxable as pure internal profits and sales. All profits / losses or sales of the controlled company are attributed to the controlling company as a result of this consideration and are only subject to tax there. The effects of the tax group are limited to internal services between domestic parts of the company; Each company pays taxes on sales with foreign parts of the company. The sole tax debtor is the controlling company, which also has to submit advance tax returns and annual tax returns for the controlling group.
Tax group declaration
A tax group declaration is a covenant in credit agreements of the credit institutions in which a controlling company in a group undertakes not to revoke or change the domination or profit transfer agreement with a dependent controlled company without the consent of the lending bank. The lending bank maintains a credit relationship with the dependent controlled company and aims with the tax group declaration that any losses of the controlled company are compensated by the controlling company and thus the equity of the controlled company is maintained. However, since under company law only the balance sheet loss arising on the balance sheet date due to the profit transfer agreement needs to be compensated, the remaining period of a financial year must be secured by a more detailed declaration. This part of the declaration also obliges the controlling company to assume any (during the year) losses from the liquidation or insolvency of the borrowing subsidiary. In this form, loans to the controlled company are even insolvency-proof, provided that the controlling company can cope with the assumption of losses.
termination
If the corporate agreement on which a tax group is based is terminated, the parent company must provide the creditors of the subsidiary company with collateral in accordance with Section 303 (1) AktG in the form of Section 232 BGB . The entitlement to security from the creditors of the subsidiary expires 6 months after the end of the tax group declaration has been announced in the commercial register.
literature
- Rüdiger Veil : company contracts. Organizational autonomy and asset protection in public limited company law. Mohr Siebeck, Tübingen 2003, ISBN 3-16-148107-0 ( Ius privatum 79), (also: Berlin, Humboldt-Univ., Habil.-Schr., 2003).
- Michael Grüner: The termination of profit transfer and domination agreements. Lang, Frankfurt am Main a. a. 2003, ISBN 3-631-50905-7 ( series of publications on corporate and capital market law 6), (also: Bayreuth, Univ., Diss., 2001).
Individual evidence
- ↑ the multiple parent unity as a tax structure model is practically no longer possible
