If a GmbH pays an excessive rent or purchase price to a person close to the shareholder with the involvement of the shareholder, this does not constitute a gift from the GmbH to the related party. However, as the Federal Fiscal Court (BFH) ruled in three judgements on 13 September 2017, changing the legal assessment, this may constitute a gift from the shareholder to the related party.

In the cases in dispute, the spouses of the GmbH shareholders had leased land to a GmbH. The shareholders had co-signed the contracts or concluded them as managing directors. In another dispute, the brother of the main shareholder sold shares to the GmbH. In these cases, it turned out that (i) the rent and (ii) the share purchase price were excessive. The tax authorities considered these to be concealed profit distributions by the GmbHs to their shareholders under income tax law and, in addition, gifts by the GmbHs relevant under gift tax law in the form of excessive payments to related parties.

Due to a change in judgement, the BFH has not followed its previous case law (see previous case law BFH, II R 28/06). Accordingly, the payment of excessive contractual fees by a GmbH to a person close to the shareholder does not constitute a mixed free gift by the GmbH to the related party within the meaning of the Inheritance Tax Act if the shareholder was involved in the conclusion of the agreement between the GmbH and the related party. The shareholder's involvement may consist of concluding the agreement between the GmbH and the related party as shareholder-managing director, co-signing the agreement as shareholder, instructing the managing director to conclude the agreement, working towards the conclusion of the agreement in any other way or agreeing to it.

The reason for the payment of the excessive rent or purchase price by the GmbH to the related party in such a case is the existing corporate relationship between the GmbH and its shareholder. In these cases, however, the Shareholder himself Schenker be a gift. Whether a gift actually exists between the shareholder and the related party depends on the structure of the legal relationship between them. Various structures are conceivable here (e.g. gift agreement, loan, purchase agreement). The BFH did not have to make a final decision on this in the cases in dispute.

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