Conversions under the UmwStG 1995 could lead to so-called contribution-born shares. The legal principles at that time were perpetuated indefinitely with the UmwStG 2006. This previously led to a considerable restriction, especially for shareholders of a GmbH with such shares, as the hidden reserves had to be taxed immediately when moving to a non-EU/EEA country. The tax authorities had only allowed relief for relocations to Switzerland in that the tax was deferred with interest and could be paid in five annual instalments. However, a cancellation of the tax in accordance with Section 6 AStG in the event of a return within 5 or 10 years, as in other cases of departure, was excluded for the transfer-born shares.

§ Section 27 para. 3 no. 3 sentence 2 lit. b) UmwStG in the version of the JStG 2022 now brings a significant improvement, according to the explanatory memorandum to the law: The application of the one-fits-all solution is accompanied in particular by the extension of the repatriation rule for transfer-born shares to third-country situations. This represents a significant improvement in the mobility of the taxpayers concerned compared to the status quo.

This is the case, as reference is now made to the current version of Section 6 (3) and (4) AStG, which results in the return rule and the interest-free deferral of the tax with payment in seven annual instalments, but only against the provision of security. The extent to which additional options arise from the DTA Switzerland must be examined on a case-by-case basis.

Dr Wolfgang Walter is a lawyer, tax consultant and specialist lawyer for tax law at the tax law firm TAXGATE, which specialises in transactions, investments and tax compliance, and comments on the tax group regulations in the KStG commentary by Bott/Walter published by Stollfuß-Verlag.

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