spousal partnership
November 16, 2009 | 40,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Hello everyone,
here is my situation:
I am separated from my husband and we have agreed on a separation agreement with a notary. In this agreement, we have divided our assets and waived any claims for equalization of gains.
According to my husband's tax advisor, there was a marital partnership until the separation. This marital partnership was terminated with the separation and a liquidation balance sheet needs to be prepared.
The concept of the marital partnership was well explained by my husband's tax advisor and it is clear and unquestionable to me (a lot of joint assets were acquired during the marriage and purposefully managed, according to the tax advisor, etc.). The advantage is that the acquisition date and therefore the value of our basic assets do not play a role.
Through the separation agreement, I transferred a 70% share in a GmbH (according to the tax advisor, in my personal assets) to my husband in exchange for various properties. Now I am aware that when securities or GmbH shares are sold, income tax must be paid. The share was worth 50,000 DM and is now worth approximately 580,000 euros (this value was determined by my husband's tax advisor).
It has always been clear that in case of separation, my husband would receive the GmbH share, as I only had the shares for tax reasons. The shares are now considered business assets for my husband, which is a disadvantage according to his tax advisor (it is said that a so-called business division will occur).
Now my questions:
With which values will the assets (GmbH share/properties) be recorded in the liquidation balance sheet? Should the acquisition price or the current market value be recorded?
Could it be that I have to pay taxes because of the GmbH share? It always says "disposal". I didn't actually receive any money for it, but does it still count as a sale?
My husband's tax advisor always mentioned a real division, and therefore no taxes would be incurred... I didn't quite understand that.
I assume that the tax advisor has explained everything correctly to me, but I want to make sure that I won't have to pay a high tax bill later on because of the GmbH shares or the properties (I also transferred some to my husband).
Thank you.
Dear Inquirer,
Thank you very much for your inquiry!
Taking into account the information you provided, I am happy to answer your questions summarily as follows:
Regarding 1.) How should assets (GmbH shares/real estate) be recorded in the balance sheet of the settlement? Should the purchase price or the current fair value be recorded?
In the settlement balance sheet, the current fair value should be generally used for GmbH shares (although not mandatory!), which is relevant for the calculation. So, if the settlement balance sheet is prepared for 01.02.2010 (for example), the value at that time is decisive.
According to § 738 Abs. 2 BGB, the value of assets for the calculation of a compensation claim is to be determined by estimation. In this case, the fair value should be included.
Regarding real estate, the current market value of the properties is crucial, which may need to be determined by an appraiser/expert.
Regarding 2.) Could it be that I have to pay taxes because of the GmbH share ownership? It is always mentioned in the context of "disposal". I didn't actually receive any money, does it still count as a sale?
Since you did not receive any money or consideration, from your perspective, it is not considered a sale.
Generally, capital gains from the sale of GmbH shares are subject to income tax, but if you did not receive such capital gains, there is generally nothing to tax on your side.
As the situation is very complex and involves a lot, a conclusive answer within an initial consultation due to the complexity is not possible. You should therefore seek comprehensive advice from a colleague experienced in tax law/corporate law locally, as important decisions are being made for your future.
I hope that my explanations have helped you. You can of course contact me through the follow-up option on this portal or via my email address.
I would like to finally point out the following: The legal advice I have provided is based solely on the information you have provided. My response is only an initial legal assessment of the situation and cannot replace a full evaluation of the facts. Adding or omitting relevant information can lead to a completely different legal assessment.
I wish you a pleasant Monday afternoon and a successful start to the week!
Kind regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney-at-Law
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax. 0471/57774
