When is a donation of shares in a GmbH possible?
April 14, 2021 | 25,00 EUR | answered by Steuerberater Knut Christiansen
Dear Mr. Christiansen,
Thank you for your feedback. How does your response relate to the situations described in the link provided?
https://www.juhn.com/fachwissen/erbschaftsteuer-schenkungsteuer/gmbh-anteile-steuerfrei-vererben-verschenken/
I'm not quite clear on this. So, is the fact that they are spouses the basis for evaluating a hidden distribution of profits? The wife is the managing director and shareholder of gGmbH (B), but not a shareholder of gGmbH (A).
Sincerely,
Angela Aldag
Hello Mrs. Aldag,
The difference to the situation described in the link is that the shares of the B-GmbH do not belong to your husband, but to the A-GmbH. The A-GmbH is directly transferring the shares to you (so your husband is only indirectly involved through his stake in the A-GmbH).
If the A-GmbH now transfers these shares to you free of charge, there will be a decrease in the assets of the GmbH. The GmbH must write off the departure of the shares from its assets at a lower value, resulting in a loss. The A-GmbH is only accepting this loss because you are a close person to the shareholder of the A-GmbH. This benefit would not be granted to a third party. Therefore, the tax office would not accept this worthless write-off by the A-GmbH and would not recognize the loss. Furthermore, the value of the decrease in assets would be treated as a distribution, which would then be subject to additional taxation (capital gains tax).
For detailed information on the topic of hidden profit distribution, please see here:
https://www.smartsteuer.de/online/lexikon/v/verdeckte-gewinnausschuettung/
Best regards,
Knut Christiansen
Tax advisor
