Fiscal deposit account

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The tax deposit account is a calculation variable in German corporate tax law . It denotes the amount of contributions that the shareholders have accrued to a corporation beyond the share capital . To this extent, payments made by the company to the shareholders do not count as distributions and can therefore be made tax-free.

Legal basis

The management of the tax deposit account is regulated in Section 27 KStG. Special cases are covered by Sections 28 and 29 KStG, namely the capital increase and capital reduction of Section 28 KStG and the conversion of the corporation by Section 29 KStG .

The tax deposit account is only managed for corporations with unlimited tax liability . Corporations domiciled in other European countries but not subject to unlimited tax liability in Germany are regulated by the legislator in Section 27 (8) of the KStG. The legislature failed to provide a regulation for corporations from third countries; Here, the capital repayment is tax-free under direct application of the free movement of capital under European law.

Regulation content

The corporation has a special account, the tax deposit account . This is determined separately by the tax office at the end of each year . The contributions that the shareholders make to the company in the course of the year over and above the share capital increase the tax contribution account.

Payments from the company to the shareholders have an effect on the tax deposit account according to a legally prescribed order of use (Section 27 (1) sentence 3 KStG):

  • If the company had a distributable profit within the meaning of Section 27 (1) sentence 5 KStG in its balance sheet at the end of the previous year , this is initially considered to have been used. In this respect, it is a taxable distribution .
  • Any additional payments are deemed to be a return of contributions if the company issues a corresponding certificate in good time. They reduce the tax deposit account and are tax-free. However, the tax deposit account cannot turn negative.
  • If the tax deposit account is exhausted, any additional payments will count as taxable distributions again.
  • If the company does not issue the certificate of return of capital in time, the payments will in any case be deemed to be a taxable distribution.

Practical relevance

The tax deposit account is determined annually by the tax office. This finding has no direct impact on payments. Therefore, deposits that increase the tax deposit account are often neglected in practice. Such errors are only noticed years later, when the tax deposit account is required to make a payment by the company to the shareholders tax-free. This leads to attempts by taxpayers to change the notices on the tax deposit account; on the other hand, the validity and the statute of limitations due to the passage of time must be taken into account.

The fact that the return of contributions is tax-free prevents double taxation. Otherwise it could happen that a partner invests in a company and when the company is dissolved, not only the profits are taxed, but the investment sum itself is also taxed like a profit.

However, the legally prescribed order of use ensures that not every repayment of investments is tax-free. Such repayments as profit distributions are primarily taxed if the company has profits in the balance sheet. In return, later profit distributions such as repayments are exempt from tax. This leads to a time lag between the actual facts and the facts on which the law is based on taxation.

It is problematic for the taxpayers concerned that a return of contributions is only recognized if the company issues a certificate of the return of contributions in good time. If a hidden profit distribution is discovered retrospectively, it is always taxable, even if the company did not have any distributable profit. Sections of the literature advocate recognizing a certificate issued subsequently at least if the company was prevented from being issued on time through no fault of its own.

literature

  • BMF, letter from June 4, 2003, IV A 2 - S 2836 - 2/03, BStBl I 2003, 366
  • Matthias Franz: The tax deposit account . In: GmbHR . 2003, p. 818 .
  • Florian Kleinmanns: Commentary on §§ 27, 28, 29 KStG . In: 360 ° eComment . Stollfuß, 2017.
  • Hans Ott: Deposits and return of contributions in corporations - practical problems in connection with the tax deposit account according to § 27 KStG . In: DStZ . 2016, p. 227 .

Individual evidence

  1. ↑ BFH v. July 13, 2016, VIII R 47/13
  2. ↑ Evidence of case law at Kleinmanns in 360 ° eComment, § 27 KStG Rn. 49.
  3. ↑ Evidence of case law at Kleinmanns in 360 ° eComment, § 27 KStG Rn. 68.