Taxation of the GmbH & Co.KG
September 11, 2012 | 50,00 EUR | answered by RAin/StBin Henriette Regulla-Schiessl
1. Does the KG have tax advantages due to its cohesion with the GmbH?
In our case:
the GmbH has a carryforward loss of 100,000 euros, while the KG has a profit of 100,000 euros.
The KG pays approximately 10,000 euros in trade tax.
The GmbH owns 80% of the KG.
2. The GmbH has given me a promise of pension.
It is now due.
Can the agreed-upon amount of the promise be changed - decreased - mutually?
Dear questioner,
thank you for your inquiry, which I would be happy to answer in the context of an initial consultation, taking into account your input and the rules of this platform. The response will be based on the information provided by you. Adding, omitting, or changing information, ambiguities, or inaccuracies in the factual statements can change the tax result.
First, I would like to mention that the information provided is somewhat brief, and I will try to capture the essence of your questions and respond accordingly.
1. Income tax
Your first question probably aims to determine whether the limited partnership (KG), which has generated profits, can obtain a tax advantage from the 80% shareholding of the GmbH, especially since the GmbH has losses?
In advance: The KG itself does not pay income taxes on the profits generated. The taxation of the KG is allocated to the shareholders according to § 15 (1) sentence 1 no. 2 EStG. Profit allocation is done through a uniform and separate determination of profits. Since the GmbH holds an 80% stake in the KG, it will likely be allocated 80% of the profits (there may be different legal provisions) (I am not considering special business assets). If the KG has made a profit of €100,000, €80,000 will be allocated to the GmbH. If the GmbH has a carryforward loss for corporate income tax (KSt) of €100,000, it will be offset with the profit earned from the KG, so that the GmbH does not have to pay KSt.
If a natural person is involved in the KG, there is the possibility to retain undistributed profits according to § 34a EStG and to receive a reduced tax rate in the year of profit generation. However, the subsequent taxation will be done at a higher tax rate. The exact calculations would exceed the scope of this forum.
2. Trade tax
The KG is the tax subject in terms of trade tax according to § 2 para. 1 GwStG. This means that the commercial profits generated from the KG are subject to trade tax. The mentioned amount of €10,000 has to be paid.
If a carryforward loss for trade tax was also determined for the GmbH, the trade tax payable by the GmbH will be reduced through the loss offset mentioned above. If a natural person is involved in the KG, the trade tax paid on their share will be credited against the income tax at a rate of 1.8 times.
3. Pension commitment
Regarding the pension commitment:
If you have met the conditions of the commitment, you have earned your entitlements. If you now waive your entitlements, the tax authorities will consider a wage increase equal to the waiver amount, which is subject to wage tax, even though you have not received any money. In the end, the waiver amount will affect your income tax, but with the corresponding wage tax deduction that the company has made.
I hope these explanations were helpful to you.
Yours sincerely,
Henriette Regulla
Attorney at law
Tax consultant
