In its letter dated 4 September 2024, the BMF responds to the case law of the Federal Fiscal Court (BFH) and applies the rulings of 28 September 2022 and 28.09.2021 beyond the individual case. As a result, the BMF is correcting its opinion in accordance with Letter dated 17.12.2013which is pleasing in this respect and creates legal certainty.
According to the administrative opinion, a selective Resolution breaching the articles of association on an incongruent advance distribution, which has been unanimously adopted by the shareholders' meeting and cannot be contested by any shareholder, is to be used as the basis for taxation as a distribution resolution effective under civil law. A shareholder to whom, following such a resolution none profit is distributed, thus has none taxable (notional) inflow. This was decided by the BFH in its ruling of 28/09/2022.
In its judgement of 28 September 2021, the BFH ruled that a shareholder resolution that is effective under civil law, according to which the Majority shareholder the share of the profit attributable to the not is distributed, but into a Shareholder-related retained earnings is also recognised for tax purposes. This also applies if the profit shares of minority shareholders are distributed at the same time. The allocation of a profit share to a shareholder-related revenue reserve is also recognised for tax purposes in the case of a minority shareholder. Controlling shareholder not to a direct (notional) inflow of investment income.
In contrast to the judgements that have been handed down in the case of limited liability companies Public limited companies (AG) an incongruent profit distribution only be recognised for tax purposesif a different profit distribution formula has been specified in the articles of association. An incongruent profit distribution due to an opening clause in the articles of association or a resolution that breaks through the articles of association should therefore lead to a taxable inflow (margin no. 8 of the above-mentioned BMF disc of 4 September 2024).
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