Claiming losses from the previous year as atypical silent partnership.
June 1, 2010 | 40,00 EUR | answered by Matthias Wander
The situation is as follows:
In year B, GmbH incurred a loss of 20,000 euros - the share of the loss of the atypical company was 16,000 euros. No application was made for the separate determination of the uniform and separate determination of tax bases. The subsequent decision by the tax office sets the loss of the atypical company at 0 euros and was not objected to in due time and can no longer be challenged or changed.
In the following year C, GmbH incurred a loss of 10,000 euros - the share of the atypical silent company was about 8,000 euros.
The GmbH has a loss carryforward of 35,000 euros.
Can an income tax-effective loss for year C be claimed beyond the 8,000 euros by also claiming the loss of 16,000 euros from the previous year?
For example: Loss takeover by the silent partner in the amount of 30,000 euros, which increases the profit of the GmbH and thus reduces the loss carryforward of the GmbH?
Are there other ways to claim the loss from year B as tax-deductible?
Dear inquirer,
Thank you for your inquiry, which I would like to answer based on your information and in the context of your commitment in a first consultation.
An atypical silent partnership is a co-entrepreneurship for which a separate and uniform determination must be made. The submission of the determination declaration is required by law. Since this was not done, the tax authorities have apparently estimated the tax bases at 0,- €. Since no legal remedy was filed against the decision, the decision is final. It could only be changed if it was issued subject to review, which I cannot assess based on your information.
The determination decision (basis decision) has a binding effect on the income tax decision (subsequent decision). If the determination decision can no longer be changed, the loss for the atypical silent partner for year B cannot be taken into account anymore.
The determined loss carryforward for the GmbH can only be offset against future profits of the GmbH. A transfer to the silent partner is not possible.
For the future, it is possible to determine a different share in the profits and losses of the GmbH by amending the articles of association.
Furthermore, section 15a of the Income Tax Act must be observed, which limits the deductible losses to the amount of the shareholder's capital contribution.
I hope this gives you a first overview.
Kind regards,
Wander
Tax consultant
