Concealed insert
A hidden contribution exists under German corporate income tax law if a partner or a person closely related to the corporation - in particular a corporation (KapG) - allocates an asset that can be contributed outside of the legal contributions and this allocation is caused by the corporate relationship (see R 8.9 KStR ) . Only pecuniary benefits that can also be part of the profit determination through asset comparison are eligible for contributions. This means that the hidden contribution must increase the balance sheet assets of the corporation by adding or increasing an asset item or by eliminating or reducing a liability item. The granting of user benefits free of charge (e.g. granting of interest-free loans) cannot be the subject of a hidden deposit. This distinguishes the hidden deposit from the reverse case of the hidden profit distribution .
There is no hidden contribution if the contributor receives new company rights for this in the context of a capital increase . This is an open (company law) deposit. If the subject of the open contribution is a business, part of business, co-entrepreneurial share or the share in a corporation, the tax consequences do not result from the individual income tax provisions, in particular not from § 6 , § 17 or § 23 EStG , but from § 20 UmwStG old version or from 2008 from § 21 UmwStG new version, with the result that a profit realization can be avoided with the depositor, unlike with the hidden deposit.
Treatment by the company in which the contribution is made
In principle, hidden deposits do not increase the corporation tax income of the corporation ( Section 8 (3) sentence 3 KStG ). Balance sheet profit increases are to be neutralized by off-balance sheet deductions. However, if the value of the hidden contribution has erroneously reduced the income of the partner, the income of the corporation must be increased by the value of the hidden contribution. In this sense, value is basically the partial value that corresponds to the amount that an intended acquirer of the entire business would spend on the individual asset ( Section 6 (1) No. 1 Sentence 3 EStG). This amount does not include the input tax deductible under the Value Added Tax Act ( Section 15 (1) No. 1 UStG ).
Treatment by the investing partner
On the occasion of a hidden contribution in a corporation, the acquisition costs of the participation for this corporation increase by the value of the contribution ( Section 6 (6) sentence 2 EStG, H 8.9 KStH “Treatment by the shareholder”). The tax consequences for a sale are to be drawn on the part of the shareholder, insofar as this is expressly regulated. The relevant regulations show a mixed picture of legal formulations. It should be noted, however, that where the legislature saw a need for regulation for the approval of the sale, the hidden deposit was only equated with a sale under individual law instead of generally.
- According to Section 23, Paragraph 1, Clause 5, No. 2 of the Income Tax Act, "the hidden investment in a corporation is considered a sale."
- According to Section 17 (1) sentence 2 EStG "the hidden contribution of shares in a corporation is equivalent to a sale."
- According to Section 8b (2) sentence 6 of the KStG, "a sale in the above sense is also a hidden contribution".
- According to Section 21 (1) UmwStG old version, the legal consequences of the sale of shares that have arisen from an open contribution in a tax-neutral manner occur “even without a sale, if ... the shareholder covertly deposits these (brought-in) shares into a corporation." UmwStG by the SEStEG reads according to § 22 Paragraph 1 No. 1 UmwStG new version: "The principles relating to the sale ... apply accordingly if 1. the contributor transfers the shares ... free of charge to a corporation." hidden deposit, which has just been taken over into the KStG without a legal definition by adding to Section 8 (3) KStG in the version of the JStG 2007.
In the context of the reinvestment reserve according to § 6b EStG, the hidden contribution is not equivalent to a sale due to the lack of legal regulation. This means that the disclosure of hidden reserves , which arise from the hidden contribution of real estate, inland waterway vessels and shares in corporations, cannot be neutralized by creating a reinvestment reserve.
Individual evidence
- ↑ Bundesfinanzhof GrS 2/86.
- ↑ i. d. F. of the Annual Tax Act 2007 of December 13, 2006, Federal Law Gazette I 2006 p. 2878.
- ↑ BFH XR 22/02 BStBl II 06, 457; Loschelder in Schmidt Income Tax Act 35th edition, marginal no. 32
