to transfer of assets
A common problem in corporate transactions is then, if not all assets are to be transferred. For example, a potential corporate buyers only interested in the actual business and will not or can not accept as a business premises. Such constraints arise not only in business sales. You can also occur in conversions from donations within families from parents to children or for other transactions.
Now it is unfortunately not so easy to transfer the relevant assets from the company tax-free out. It threatens the taxation of capital gains without a cash inflow would be available from which the tax could then be paid.
During a transfer of individual assets of a corporation out to third parties with an exception to the income tax out, it looks at individual companies and partnerships, fortunately, is different.
A tax-neutral Transfer to the private assets of the company or shareholder is even the case of corporations (PersG) is not possible, but at least the design possibilities of § 6 paragraph 5 of the Income Tax Act. Thereafter, individual assets are transferred to another company assets. The tax will of course get entangled.
The provision is in the details certainly very complex, but up to a question, everything seems to be substantially resolved. This has a question, however, it in itself. It is about whether an asset may be transferred to a parallel society, ie to a person identical sister company.
The said clause is one of the cases of tax-neutral transfer to one. The tax-neutral transfer to a sister company is not listed unfortunately. This would actually come to the conclusion that such a transfer taxes must rise. It is in this sense, the BFH with Judgement of 25.11.2009 has - IR 72/08 decided. The case described here is extremely complex and I do not recommend more to read there. The applicant company had restructured a business selling a business group in several steps. Shortly before the sale of a PersG land had been transferred to a sister-PersG. The FA wanted tax course.
Man weiß leider nichts über die Hintergründe des Falls. Hatten die Gesellschafter in Zeitnot gehandelt? Oder hatten die Berater geschlampt? Bei sorgsamer und vorausschauender Vorgehensweise hätte man die Grundstücke mit einer adäquaten Gestaltung problemlos heraus transferieren können. Hier aber war der zeitliche Abstand mit zwei Monaten so kurz, dass auch noch die Frage der Gesamtplanrechtsprechung relevant wurde.
Ohne auf den letzteren Aspekt eingehen zu wollen, hat der 1. Senat des BFH den Fall im Sinne des FA durchgewinkt. Nun aber kommt der 4. Senat des BFH ins Spiel. Mit Beschluss vom 15.4.2010 - IV B 105/09 kam er genau zum gegenteiligen Ergebnis. Er meint, dass die PersG Steuerrechtssubjekt für the type of income (eg from trade) and their allocation is. The object of taxation but the shareholders were himself and not society. It should always apply the so-called principle of transparency.
For tax law laity: the transparency principle states that a PersG tax transparent, so "transparent" and the income is attributable to the shareholders directly and immediately. This would therefore only a non-taxable transfer and no transfer. This evaluation of the 4th Senate is in my opinion, absolutely convincing.
The match for the correct interpretation of tax legislation is once again fully open. A clarification but is now in sight. The decision of the 4th Senate was only one of a suspension decision. The actual procedure is pending. If the 4th Senate will remain in this proceeding in his opinion, he will have to call the Great Senate, which will have the final word.
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