In many restructuring cases, it is decisive that transfers of assets to a company are made “against the grant of company rights”. For example, a book value transfer (prevention of disclosure of hidden reserves) is possible if individual assets are transferred from business assets (including separate business assets) to a partnership to the extent the transfer is made “against the grant of company rights”. The same applies if an independent division of a business (and therefore also e.g. a wholly owned GmbH share) is brought into a partnership. In this regard, there is always the question what requirements are to be met by the “against the grant of company rights” criterion.
Two types of capital accounts are frequently held in partnerships: While the capital account I is relevant to the liable capital, the voting rights and the profit participation, reserves are posted to the capital account II (e.g. hidden contributions, profits that cannot be withdrawn, etc.). This capital account II is also a proprietary account if the account participates in losses, which is regularly formulated to this effect in the partners’ agreement (only the loan and/or private accounts do not participate in the loss; they are therefore not a proprietary account, but only establish claims under the law of obligations of the partner against the partnership).
So far, the fiscal authorities have assumed that a “grant of company rights” also applies if the counter-entry was made for the deposit of the asset in the capital account II to the extent this account participated in the loss and was therefore of an equity nature. After the 4th Senate of the Federal Fiscal Court (BFH) made a decision in a similar matter in its judgement dated 29 July 2015 that company rights are only granted if the capital account I is involved, the fiscal authorities have now given up their previous stance. In a decree dated 26 July 2016, the fiscal authorities determined that a deposit “against the grant of company rights” does not apply if the posting is exclusively made to the capital account II.
It has not yet been clarified what the effects are if both the capital account I and the capital account II are involved. This decision and this decree have a considerable practical meaning: In the past, the cases had often been arranged so that the capital account I was not involved for various specific reasons, but the capital account II was involved.