Remuneration for the redemption of a usufruct in GmbH shares

December 19, 2024

In a noteworthy decision, the Federal Fiscal Court (BFH) ruled (judgment of September 20, 2024, IX R 5/24) that the redemption of a right of usufruct in return for a compensation payment is not taxable if the usufructuary is not the beneficial owner of the GmbH shares.

In 2012, the plaintiff transferred her interest in Z-GmbH to her son free of charge by notarized agreement by way of anticipated succession, reserving a usufruct that included, in particular, the right to participate in profits. In the context of the sale of the shares by the son, the plaintiff and her son agreed to the termination of the usufruct of the shares in Z-GmbH in return for the payment of a redemption amount.

However, the BFH also comments on the current income of the usufructuary. Accordingly, even the current profit distributions are probably not attributable to the conditional usufructuary.

In any case, it should henceforth be agreed in contracts for transfers subject to a retained usufruct that the payment to the usufructuary by the owner under civil law is always made after deducting capital gains tax (net).