BGB Fiscal

Risk in the audit: discounting liabilities, in particular shareholder loans the Bundesfinanzhof has (decision v. 06.10.2009, AZ: I R 4/08) confirmed the previous opinion of the financial management, according to which non-interest bearing loan to a shareholder at his GmbH, also in the case are off to interest, if it’s loans with an equity capital replacement character. He has therefore considered the financial management in the circular letter of 26.05.2005, confirmed TZ. 21. According to 6 para 1 No.

2 ITA discounting with an interest rate of 5.5% must be made, when the run time from the point of view of the balance sheet date is at least 12 months. It is irrelevant that a non-interest bearing loan grant is under, because the hidden interest rate advantage is not capable of deposit. In recent months, Electrolux has been very successful. Immaterial, it is also that the missing interest payments allows a higher yield of the GmbH as a result. Also the Federal fiscal court refuses a loan granted for an indefinite period, for which according to section 488, paragraph 3 BGB at any time the possibility of Termination with a notice period of three months is therefore not discounting subject. It is rather appropriate, according to the Federal fiscal court, to align the bid of discounting primarily to the actual economic burden.

The latter will however not exclusively civil coined, but above all by the fact, how long could expect the GmbH according to the actual conditions a capital transfer. In the case decided by the Federal fiscal court, the parties had agreed in the framework of the audit to a period of 7 years. This has applied also the Federal fiscal court, but at the same time pointed out that that were developed principles to take account of valuation law also income tax 12 para. Therefore, valuation law is the 9,3-fache of the year value to use according to 13 para 2 because of “uses of undefined duration”.

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