Inflow of unpaid bonuses in the case of a controlling shareholder-managing director

July 11, 2024

The courts regularly assume that a controlling shareholder-manager (GGF) receives income from bonus claims when the annual financial statements are adopted (due date).

The Federal Fiscal Court (BFH) has now ruled (in a judgement dated 5 June 2024 (VI R 20/22)) in favour of the managing director in the case where the bonus claims were not reported in the approved annual financial statements. The decision was in favour of the managing director:

If the bonus claim is not recognised as a liability in the approved annual financial statements, this does not lead to an inflow for the managing director, in the opinion of the Federal Court of Finance. This even applies if this liability should have been recognised in the (approved) annual financial statements in accordance with the principles of proper accounting. The Federal Fiscal Court thus expressly contradicts the opinion of the tax authorities (BMF letter dated 12 May 2014, BStBl I 2014, 860).

However, an inflow may exist if the managing director has waived the claims to the bonus after they have arisen. In this case, there is an inflow to the managing director and a subsequent hidden contribution to the GmbH.

The Baden-Württemberg Fiscal Court must now examine in the second instance whether the managing director cancelled the bonus promise with the consent of the GmbH before the bonus claims arose at the end of the respective year, or whether the plaintiff waived the bonus claims that had already arisen. Only in the latter case would a hidden contribution of the claim values of the bonus claims to the GmbH be affirmed.