Profit distribution during the year after acquisition of 10% of the shares

June 16, 2024

If a GmbH acquires at least 10% of the shares in a corporation during the year and this corporation distributes to the GmbH within the year, the 10% of shares are deemed to have been acquired at the beginning of the year. The distribution is then 95% tax-free in accordance with Section 8b KStG.

In its judgement of 13 March 2024 (I R 30/21), the BFH initially confirmed its judgement of 6 September 2023 (I R 16/21) and ruled that a “uniform acquisition” also exists if the (total) 10% shares are acquired by several sellers in one deed.

The acquisition in the judgement case took place in a uniform notarial deed and on a uniform acquisition date. The BFH also includes a reference that can be understood to mean that two deeds could also be regarded as a single acquisition decision if there is a causal and temporal connection. In the case at hand, this reference would not have been necessary as the required 10% of the shares were already transferred with the first deed.

Please note: for trade tax purposes, the shareholding must be at least 15%, and in the case of acquisitions during the year, the fictitious retroactive reference to the beginning of the year does not apply for trade tax purposes. In this case, the distribution within the year is fully subject to trade tax. Therefore, the motto - irrespective of Section 8b para. 4 sentence 6 KStG - is generally: wait and see.