What is the importance of community participation
Civil law society
Table of Contents
1.1 Demarcation from a community
1.2 Differentiation from corporations
2 The society under civil law in civil and commercial law
2.1 Overview of the legal regulations
2.2 Establishing a company under civil law
2.3 The formation processes and the articles of association
2.3.2 The founding process itself
126.96.36.199 Excursus: The concept of total handicraft
188.8.131.52 The founding stage
184.108.40.206 The articles of association (including possible content)
2.4 How the civil society works (overview of internal and external relationships)
2.4.1 (Partial) legal capacity of the company under civil law
2.4.2 Merchant status and company name
2.4.3 Principles of liability in a company under civil law
220.127.116.11 Liability of the partners to one another
18.104.22.168 Third Party Liability
22.214.171.124 Liability in the event of a change of shareholders
2.4.4 Due diligence and fiduciary duties of the shareholders
2.5 Participation in a company under civil law (overview)
2.6 Change of shareholder
2.6.1 Resignation of shareholders
2.6.2 Admission of shareholders
2.6.3 Exclusion of a partner
2.6.4 Combination of all company shares
2.7 Termination of the company under civil law
2.8 Accounting of the company under civil law
3 The civil society in tax law (overview)
3.1 Basic procedural issues
3.2 The civil society in income tax
3.3 The company under civil law in the other types of taxes
3.3.1 Sales tax
3.3.2 Trade tax
3.3.3 The other real and transaction taxes
3.3.4 Other (Section 35 EStG and solidarity surcharge)
3.4 Summary overview
4 Special case: accounting for participation
6 Related Lexicon Articles
The society under civil law (hereinafter GbR - also called BGB society) represents the basic form of all → partnerships. It is regulated in §§ 705 to 740 BGB. The essential feature of a GbR is the amalgamation of at least two shareholders (there is no such thing as a »one-man GbR«) to achieve a common purpose, who commit to promoting this purpose (through labor and / or capital). (see § 705 HGB). In terms of property law, the GbR also stands for the basic form of the so-called collective partnership (see also → Fractional communities).
1.1. Differentiation from a community
A community (§ 741 BGB) does not pursue a common purpose, but the communities regularly each pursue their own purposes. The community is limited to only jointly holding a legal position in fractions. In contrast to the GbR, a community regularly does not have total assets (→ fractional communities). The essential difference to the GbR is the individual power of disposal of the fractional owner over his share in the community flat shares (§ 747 BGB).
1.2. Differentiation from corporations
In contrast to KapG, the distinction between internal and external societies is of great importance with PersG. A GbR can exist both in the form of an internal company (e.g. carpooling) and as an external company (e.g. property GbR that manages assets). The main difference between internal and external societies is education common total hands.
Other differences are:
the principle of self-organization (only shareholders can be managing directors of the GbR);
Despite the approximation of the PersG to the KapG, which also applies to the entrepreneurial external GbR due to the analogous application of § 124 HGB since the judgment of the BGH of January 29, 2001 (DB 2001, 423), the PersG are not legal persons . This is also due to the fact that the PersG are not completely independent of their members.
2. Society under civil law in civil and commercial law
2.1. Overview of the legal regulations
As the basic form of the PersG, the GbR is regulated in the BGB. Through the articles of association, the partners mutually undertake to promote the achievement of a common purpose in the manner determined by the contract, in particular to make the agreed contributions. This purpose is basically freely selectable and has fundamental effects on the later orientation (internal or external company) and duration of the company (e.g. only short-term occasional company or long-term company). The contributions of the shareholders (§ 706 BGB) can also exist in the form of services and the transfer of use (see below for accounting problems). Unless otherwise agreed, the shareholders have to make equal contributions.
The GbR occurs mainly in the form of small business and freelance personal associations. Issuing and loan syndicates are also frequently encountered. Finally, the pre-founding company of a GmbH is treated according to the regulations of the GbR.
2.2. Establishment of the civil law company
Since a GbR does not have to be entered in the commercial register, this is irrelevant for the establishment of the company. Voluntary registration is possible and can lead to the GbR becoming constitutively an oHG (→ Open Trading Company) (see Section 105 (2) HGB). If the specific purpose of the GbR is a commercial one that meets the requirements of § 105 HGB for a commercial enterprise, it is already an oHG (§ 105 Paragraph 1 HGB) even without an entry in the commercial register. Conversely, it follows from this that the purpose of a GbR can only be commercial if Section 105 HGB is not fulfilled (small business). In addition, the purpose of the GbR is freely selectable, provided that a common and not just the same purpose is promoted by the shareholders, to which they have committed. Without such an obligation, it is an exchange contract.
In the case of the existence of a GbR, this arises through the conclusion and the coming into effect of the articles of association, which the shareholders for the mutual promotion of common Committed to the purpose. Since the BGB does not specify any formal requirements, the articles of association can in principle be concluded without any form, i.e. also implicitly or verbally.
To found a GbR, at least two shareholders must always conclude a partnership agreement, the establishment of a »one-man GbR« is not possible. The shareholders themselves can be natural persons, legal persons, commercial partnerships and, more recently, also BGB companies (BGH of July 16, 2001, BGHZ 148, 291–297, NJW 2001, 3122, LEXinform 0164554; str.). Non-legal associations, however, cannot be partners in a GbR.
In addition to the direct participation of shareholders, there are also indirect participations that lead to so-called internal companies. In these cases, the (internal) shareholders do not appear externally. The main cases of internal companies are sub-participation and the typical silent society.
Furthermore, a GbR can result from failure to legal form, if for example an oHG or KG “shrinks” to a size that no longer meets the requirements of a commercial enterprise and no entry has been made in the HR, or through conversion. The following cases of conversion (for details, see → Open trading company) are possible:
Entry (acceptance) of a new shareholder in an existing sole proprietorship,
Admission of a new shareholder due to death,
Conversions within the meaning of the UmwG (change of legal form, merger, demerger), if the target company should be a GbR.
2.3. The incorporation processes and the articles of association
For the rule - founding a GbR - a partnership agreement is concluded in which the shareholders commit themselves to the realization of a common purpose based on consistent declarations of intent (§ 705 BGB).
Since the BGB and HGB dispense with a statutory form requirement, the articles of association can also be concluded verbally or through implied (conclusive) action. However, the acceptance of an implied articles of association presupposes that a corresponding will to be legally bound by the persons involved can be ascertained beyond any doubt. At least the actions must show a corresponding willingness to pay a contribution.
An exception to the principle of informal contract exists, however, if the subject of the contribution is contributions in kind, for the transfer of which the law provides for a formal requirement elsewhere. If, consequently, properties are inserted by the shareholder (Section 311b BGB) or GmbH shares are transferred to the GbR (Section 15 (4) GmbHG), the shareholders cannot avoid notarial certification.
Regardless of the legal regulation, it is at least advisable to use the written form simply because of the later evidence situation. The participation of minors should also be made in writing because of special tax effectiveness requirements.
2.3.2. The founding process itself
126.96.36.199. Excursus: The concept of total handicraft
In terms of property law, the GbR is a joint partnership (§§ 717–719 BGB).
The following statements are associated with the collective hand or with the collective handicap assignment - in general and in relation to the oHG:
In the case of objects that are held as part of the property of the GbR, none of the partners has a right of disposal over an individual object (Section 719, Paragraph 1, Clause 1, 1st alternative, BGB). This scheme is mandatory law.
In principle, the individual partner of the joint partnership (= shareholder of a GbR) also has no right of disposal over his share of the company's assets (Section 719, Paragraph 1, Clause 1, 2nd alternative, BGB). This statement, which, if interpreted true to the letter, leads to the inability to sell holdings in a GbR, is deviated from if the "entire" share of the company (including the participation rights) is sold together with the share in the company's assets. So this statement is available.
This in turn results in (§ 717 BGB) the so-called spin-off prohibition, according to which the comprehensive membership right and the financial participation in an oHG may only be sold together.
Finally, according to § 719, Paragraph 1, Clause 2 of the German Civil Code, the individual joint owner has no claim to division.
188.8.131.52. The founding stage
A GbR is usually created through the conclusion of a partnership agreement. The GbR is thus established. With the exception of the above-mentioned cases, the articles of association can be concluded informally. An entry of the GbR in the HR is not required.
184.108.40.206. The articles of association (including possible content)
In the components of the articles of association, one can differentiate between the mandatory content and the optional points. Since there is no register entry in a GbR, the contractual mandatory catalog is limited to the elements without which no Personal Law can be established:
Shareholder (name, first name, date of birth and place of residence),
Company purpose of the GbR,
All other points belong to the target content at the GbR and are listed according to opportunity criteria.
Place (seat) of the GbR,
Time of the beginning of the GbR,
Power of representation.
Foundation and ongoing operation of the GbR
Overall management power (management / representation),
Resolutions and questions of the authority to participate (voting rights),
Questions of non-compete and reimbursement of expenses,
Annual financial statements and distribution of results including the withdrawal authorization,
special phases of the GbR,
Transferability of shares (power of disposal),
Resignation of the shareholder (s),
Succession (by death),
Duration of the GbR,
Termination of the shareholders,
Dissolution and liquidation of the GbR,
possibly other legal framework conditions (GWB / UWG etc.).
If a deviation from the legal regulations (as far as this is possible) is desired, this should at least be recorded in writing for the purpose of verifiability.
2.4. How the civil society works (overview of internal and external relationships)
Three areas characterize the organizational structure of a GbR (as well as of every PersG):
the management (authority),
the representation (power) and
the shareholder resolutions.
The legal distinction is not difficult. With the management authority, the areas of competence are defined in the internal relationship, while the power of representation is linked to the question of who can effectively represent the company in the external relationship. Both terms have in common that according to the principle of Self-organization only the shareholders themselves are allowed to take the (management) fate of the GbR into their own hands.
According to Section 709 (1) of the German Civil Code (BGB), the shareholders are jointly entitled to manage the company, so that the consent of all shareholders is required for every transaction (so-called collective management authority). However, this regulation is dispositive and in practice is mostly replaced by an individual management authorization. In these cases, the other shareholders have a right of objection according to § 711 BGB. If the shareholders decide by majority, in case of doubt according to Section 709, Paragraph 2 of the German Civil Code, the majority is decisive.
According to § 714 BGB, the power of representation is linked to the power of management. According to Sections 709, 714 of the German Civil Code (BGB), all shareholders are generally authorized to represent the company (joint agency). Different regulations are possible.
Shareholder resolutions: In principle, every shareholder is entitled to vote, but the articles of association can provide for the exclusion of voting rights, e.g. if not all shareholders are authorized to manage the company (cf. § 710 BGB). The consent of all shareholders is only required for basic business (voting on core areas of the company).
2.4.1. (Partial) legal capacity of society under civil law
Since the judgment of the BGH on January 29, 2001 (II ZR 331/00, BGHZ 146, 341-361), the so-called external GbR has been granted partial legal capacity, which de facto has brought the GbR closer to legal entities. According to Section 124 of the German Commercial Code (HGB), the GbR can therefore acquire rights and enter into liabilities under its company, acquire property and other real rights to land, sue and be sued in court. Furthermore, entry in the commercial register is now possible on a voluntary basis.
For a long time it was controversial whether the GbR in the Land register can be entered. In its judgment of December 4, 2008 (V ZB 74/08, BGHZ 179, 102–114; NJW 2009, 594), the BGH issued a detailed position on this. The GbR can therefore under the description be entered in the land register, which their shareholders in the articles of association for them intended to have. If the articles of association do not provide for a designation of the GbR, the GbR is registered as a "civil law company consisting of ..." and the names of its partners (also in the permanent appraisal the Bavarian OLG).
The BGH also decided (and denied) the question of whether a GbR can be an administrator within the meaning of the WEG (see BGH judgment of January 26, 2006, V ZB 132/05, NJW 2006, 2189; continuation of BGH, May 18, 1989, V ZB 4/89, BGHZ 107, 268, 272).
On the question of whether a GbR can be a consumer within the meaning of the BGB, see BGH judgment of October 23, 2001, XI ZR 63/01, BGHZ 149, 80-89; NJW 2002, 368.
2.4.2. Merchant status and company name
The GbR and its shareholders are not merchants by virtue of the HGB. However, a small commercial GbR (which does not meet the requirements of § 105 HGB) can acquire the status of a merchant by virtue of a constitutive entry in the commercial register. If the GbR wants to be entered in the commercial register (§ 2 sentence 2 HGB), the registration must contain the following information in accordance with § 106 paragraph 2 HGB:
the surname, first name, date of birth and place of residence of each partner;
the name of the company, the place where it has its registered office and the domestic business address;
the power of representation of the shareholders.
The GbR cannot use a company name within the meaning of the HGB. However, the shareholders can give this a so-called business or establishment name. From this designation, however, it must be clear that it is a GbR. There must be no risk of confusion with other forms of company.
2.4.3. Principles of liability in a company under civil law
220.127.116.11. Liability of the partners to one another
According to Section 708 of the German Civil Code (BGB), when fulfilling the obligations incumbent on him, a partner is only responsible for the care that he normally applies in his own affairs (so-called diligentia quam in suis). Deviations in the articles of association (relaxation or tightening) are possible.If a shareholder does not meet his obligation to contribute or if he violates his duty of care, the company (joint hand) is entitled to performance or compensation against the shareholder under Section 280 (1) BGB in conjunction with the articles of association. The co-partner injured by the misconduct of the partner is also entitled to claim. If the claim is not asserted for the company by the shareholders, there may be the possibility for the individual partner to assert the claim for the company in the context of a shareholders' action (so-called actio pro socio).
18.104.22.168. Third Party Liability
If the GbR has been effectively represented, the GbR is initially responsible with the company's assets for the liabilities established in its name (analogous to Section 124 of the German Commercial Code).
In addition, the GbR partners are liable for these (i.e. third-party) liabilities. Since the entrepreneurial foreign GbR has acquired partial legal capacity, the long previously controversial question of the personal liability of the BGB shareholders for liabilities established by the company has also been clarified. According to the ruling of the Federal Court of Justice (dated January 29, 2001, II ZR 331/00, BGHZ 146, 341–361, NJW 2001, 1056), the BGB partners are accordingly liable as the personally liable partners of the commercial partnerships. This means that the provisions of Section 128 of the German Commercial Code (HGB) apply accordingly. The partners are therefore liable
primary (without prior use of the GbR),
on the whole (in full),
personally (also with private assets),
unlimited (without any existing deposit limit).
If the claim of a creditor is satisfied by a partner, a transfer of claims according to Section 774 of the German Civil Code (BGB) is affirmed analogously because of the accessory liability from Section 128 of the German Commercial Code.
The shareholders of a GbR are entitled to the objections of Section 129 of the German Commercial Code (HGB).
One possibility of limiting liability towards third parties can be achieved by including a clause in the articles of association, according to which the partner authorized to represent is obliged to limit liability towards third parties (business partners) of the GbR to the company assets of the GbR. However, such an agreement must be for the Objectively understandable to third parties be (e.g. by submitting the articles of association). An individual agreement with the individual business partner is possible. This should definitely be done in writing. This corresponds to the ruling of the Federal Court of Justice, according to which the liability of the partner cannot be restricted by adding a name or another indication that clarifies the will to only be responsible for this obligation to a limited extent, but only by an individual contractual agreement. For the acceptance of such an agreement it is necessary that the limitation of liability by a individual agreement of the parties is included in the relevant contract (BGH judgment of September 27, 1999, II ZR 371/98, BGHZ 142, 315–323, NJW 1999, 3483, BGH of November 24, 2004, XII ZR 113/01, DStR 2005, 529) . If the agreement is effective, the individual partners are only liable in the amount of their company shares.
For the limitation of liability in the event of a loan agreement being concluded by a GbR, see BGH judgment of November 27, 2012 (XI ZR 144/11, NJW 2013, 1089-1092).
A exception of these principles applies to certain special forms (closed real estate funds, building owner companies) in the legal form of the GbR for reasons of protection of trust. Please refer to the BGH judgment of January 21, 2002 (NJW-RR 2002, 987 L). According to this, investment owners of already existing closed real estate funds, which are designed as a GbR, for reasons of protection of trust, may also after the decisions BGHZ 142, 315 = NJW 1999, 3483 = NZG 1999, 1095 = NZBau 2000, 288 L = LM H. 3 / 2000 § 705 BGB No. 74 and BGHZ 146, 341 = NJW 2001, 1056 = NZM 2001, 299 = NZG 2001, 311 = LM H. 5/2001 § 50 ZPO No. 52 for the change that occurred previously concluded contracts continue to refer to a limitation of liability provided for in the articles of association, subject to the prerequisite that the contractual partner was at least aware of the limitation of liability.
For contracts of closed real estate funds in the form of a GbR concluded after the amendment of the Rspr., An exception to the above-mentioned principles is that the personal liability of the investment partners for legally justified liabilities of the real estate fund due to the peculiarity of such funds as pure capital investment companies is also effective in Agreements in the form of a form included in the contract can be restricted or excluded without this fundamentally being an unreasonable disadvantage for the contractual partner within the meaning of Section 307 of the German Civil Code (BGB).
So here is one Limitation of Liability permitted in the form of terms and conditions. With regard to Building owner associations the BGH decided in the cited ruling that future apartment owners who jointly build an apartment complex ("builders' associations") for the production costs ("construction debts") continue to be liable only proportionally according to the previous Rspr. principles, even if they are in traffic as Outside GbR occur.
In practice there is one Limitation of Liability often in one too Freelance GbR in front. In client contracts, it is permissible to limit liability to the (minimum) sum insured. For lawyers and tax consultants, however, § 51 BRAO (accordingly) must be observed. Accordingly, the following gradation is possible:
Limitation of liability to the minimum sum insured in cases of negligence by means of an individual written agreement with the client,
Liability is limited to four times the minimum sum insured if there is appropriate insurance cover for cases of slight negligence through the use of general terms and conditions.
The members of a partnership are jointly and severally liable from the contractual relationship between themselves and the client (§§ 421 ff., 427 BGB). Personal liability for damages can also be limited by pre-formulated terms and conditions to individual members of a law firm who process the mandate within the scope of their own professional powers and who are specifically identified. The declaration of consent to such a restriction must not contain any other declarations and must be signed by the client.
For delictic The following applies to third-party claims that were committed by misconduct by organs of the GbR: Due to the analogous application of § 31 BGB, the GbR is liable in accordance with the respective basis for claims (e.g. § 823 BGB) in conjunction with § 31 BGB for those added by its shareholders to third parties Damage insofar as this damage was committed by the shareholders in the course of their work for the company. In the offense area, the principle of accessory nature (liability of the other shareholders) only applies to a limited extent, since the other attribution norm of § 831 BGB (vicarious agent) is not relevant here.
22.214.171.124. Liability in the event of a change of shareholders
According to the BGH judgment of 7.4.2003 (II ZR 56/02, BGHZ 154, 370–378, NJW 2003, 1803), the shareholder joining a GbR also has personal and joint and several debtors for liabilities of the company established before his entry to be responsible for the old shareholders. This principle also applies to societies under civil law in which members of the liberal professions have come together for joint practice. With this further development of the fundamental judgment of January 29, 2001, the BGH also referred to § 130 HGB in the result of the GbR (very problematic because of the reverse referral technique; here on the HGB!). In this case, only limited protection of trust applies to old cases, as the BGH decided in its judgment of 12.12.2005 (NJW 2006, 765).
The departing GbR partner is liable according to § 736 Paragraph 2 HGB like a partner leaving an oHG or KG according to §§ 159, 160 HGB. In addition, according to Section 739 of the German Civil Code (BGB), in the event that the value of the company's assets is insufficient to cover the joint debts and contributions, the other shareholders must pay the shortfall in proportion to their share in the loss.
If the company is continued with this heir after the death of a partner on the basis of corresponding agreements, the heirs take on the position of the testator as universal successors. The testator's liability position therefore applies to the heirs, unless they make use of the limitation of liability in Section 139 of the German Commercial Code (HGB).
2.4.4. Due diligence and loyalty obligations of the shareholders
Reimbursement of expenses and remuneration for managing directors (remuneration for activities): The legal basis for this is the reference to the contract law regulated in § 713 BGB (§§ 669, 670 BGB), according to which the shareholder can request replacement. In addition, in the context of the satisfaction of liability claims of third parties, the claim is transferred to the shareholder who has been claimed (analogous to Section 774 BGB). It is also possible to take recourse against the other shareholders in accordance with §§ 713, 426 BGB, unless satisfaction can be obtained through the company.
Social entitlements: With regard to the information on the duty of loyalty and the non-competition clause, reference can generally be made to the information provided by the oHG (→ Open Trading Company). Due to its dependence on the specific structure of the company, the duty of loyalty can be particularly extensive in the case of a GbR. A non-competition clause can also be derived from the duty of loyalty (see BGH judgment of June 19, 1995, II ZR 255/93, NJW 1995, 2843).
Managing directors: The managing directors authorized to manage the company (see above) are obliged to do so.
2.5. Participation in a company under civil law (overview)
While the participation in a KapG (GmbH share or share) represents a separate WG, in a GbR the participation of the individual partner is closely linked to the PersG. Again from their legal nature as Community of hands § 717, § 719 BGB result in a close connection between the participation of an individual GbR partner with the company or with the participations of the other partners.
This connection can be seen on the one hand in the organizational handling. Initially, Section 717 of the German Civil Code prohibits a separate transfer of asset participation and shareholder status. In the event of a transfer, both components must change legal entity at the same time. In the case of a GbR, an isolated transfer of a say in the oHG, detached from the actual transfer of the assets of the participation, is therefore not permitted.
On the other hand - and this is even more important from the point of view of all shareholders - the transmission of participation always the approval ahead of the other shareholders. This consent is usually regulated in the contract, but it can also be declared ad hoc. With this understanding and with this restriction, there are no longer any concerns against a sale or against giving away a GbR participation in the sense of a direct legal transfer.
2.6. Change of shareholders
2.6.1. Resignation of shareholders
If partners leave a GbR and the company continues under the remaining partners, the person leaving loses his real rights to the company's assets and receives a compensation claim under the law of obligations in their place. The share of the resigning party in the company's assets increases with the remaining shareholders (Section 738 BGB).
2.6.2. Admission of shareholders
The admission of a new partner takes place through a separate admission contract. Like the previous shareholders, the newcomer is obliged to make contributions (contribution obligation). On the basis of the contribution, the entrant receives a share in the profit and assets of the company in accordance with his share. In this respect, the shares of the previous shareholders are reduced (growth).
2.6.3. Exclusion of a partner
The corresponding regulation is contained in Section 737 of the German Civil Code (BGB). This regulation is mandatory, it cannot be waived by the articles of association. The other shareholders are jointly entitled to the right of exclusion. The exclusion takes place by declaration to the partner to be excluded.
2.6.4. Association of all company shares
The unification of all company shares in one hand (e.g. by accrual or inheritance) leads to the dissolution of the company, as the requirements for the existence of a GbR (at least two partners) are no longer met.
2.7. Termination of the civil society
The BGB provides for a number of legal reasons for dissolution of a GbR in §§ 722 ff. BGB. If these provisions are to be deviated from, corresponding provisions in the articles of association are necessary.
The individual reasons for dissolution or termination are:
Termination by a shareholder (Section 723 (1) BGB), the agreement of the resignation of the terminating shareholder can be agreed (Section 736 BGB), continuation clause; this also applies to a company that is not established for the long term (Section 724 of the German Civil Code),
Termination by pledges (§ 725 BGB),
Impossibility or achievement of the common purpose (in the case of occasional companies or if the company has not been closed permanently) - § 726 BGB,
Lapse of time (for companies concluded for a limited period of time) - § 723 BGB,
Death of a partner, unless a succession clause has been agreed (Section 727 BGB),
Opening of insolvency proceedings against the assets of the company or a partner (Section 728 BGB),
Resignation of the penultimate partner = association of shares. The GbR then becomes a sole proprietorship, as the requirements for a GbR are no longer met with only one participating partner.
According to § 730 Abs. 1 BGB changes through the dissolution of the company purpose. After the dissolution of the company, a dispute takes place among the shareholders with regard to the company's assets, unless insolvency proceedings have been opened against the company's assets. The purpose of the company is therefore now to deal with all of the property's hands.
2.8. Accounting of the company under civil law
Since the GbR is neither a businessman (a commercially active GbR that exceeds the size criteria of § 105 HGB, becomes an oHG even without an entry) and does not have to be entered in the commercial register, there is generally no accounting and accounting obligation for the GbR according to HGB. If the GbR keeps books on a voluntary basis or if it acquires the status of a merchant on the basis of voluntary entry in the commercial register in accordance with Section 2 (1) of the German Commercial Code, the provisions of Section 238 ff. Of the German Commercial Code also apply to the GbR (see → Open trading company).
In principle, it is sufficient for a GbR to determine the company's profit under company law (analogous to tax law) by means of an income surplus calculation in accordance with Section 4 (3) EStG, provided that it generates profit (Section 2 (2) EStG). Sections 721 and 722 of the German Civil Code (BGB) must be observed when distributing profits. In case of doubt, the profit and loss distribution is made by head, deviating regulations in the articles of association are possible.
The determination of profits under tax law is linked to the accounting and accounting obligations under commercial law (Section 140 AO). If the GbR is already obliged by way of exception and it keeps books voluntarily, it must also determine the profit under tax law in accordance with Section 4 (1) EStG. If the size criteria of § 141 AO are exceeded, there is an independent accounting and accounting obligation that only exists for tax law.
3. The civil society in tax law (overview)
The tax treatment of a GbR (and all PersG) depends on the respective type of tax.
3.1. Basic procedural questions
Both in the case of a (small) commercial GbR and in the case of non-commercial and non-commercial PersG, the income must be determined according to the principles of the respective type of income, separately and uniformly determined in accordance with § 180 Paragraph 1 No. 2a AO and not operational attributable proportionally to the shareholders involved (→ separate statement). The question of how - especially at what level and at what point in time - the shares of company shareholders are to be reclassified and assigned to commercial income is addressed by the administration and the BFH-Rspr. answered differently. See → Participations in asset management partnerships and → Zebra companies.
In terms of procedural law, this task is performed by Section 179, Section 180 (1) No. 2 (a) AO. While the tax bases usually form a dependent (i.e. not individually attackable) part of the tax assessment. Basic notices made an exception. Whenever there is a risk of diverging results, the above-mentioned provisions in conjunction with Section 171 (10) AO provide for the need for a binding basic decision.
In the basic notification, here in the so-called assessment notification, the relevant tax bases are first determined (profit of the GbR). Then §§ 182 Paragraph 1 (binding effect) and 175 Paragraph 1 No. 1 AO (→ amendment of tax assessments according to § 175 AO) oblige the tax offices to draw conclusions from the basic assessment (profit share of the shareholder). While the basic notices are issued by the so-called company tax offices (seat and management of the GbR), the Follow-up notices issued by the tax offices of the shareholders.
The content of the basic decision depends on the material legal question of how far the common source of income (joint participation in the GbR) extends. Because of the enormous importance of the commercial basic notices, §§ 180 ff. (§ 183) AO precisely regulates the procedural requirements for their receipt and the time limit (→ separate statement).
In contrast the tax notices that directly designate the GbR as the tax debtor (USt, GewSt, GrundSt, GrESt) are issued directly to the GbR. In these cases, the GbR is the so-called content addressee.
3.2. The civil society in income tax
Due to the principle of transparency, which is also fundamentally applicable in tax law, the income tax subjects in a GbR are the respective shareholders, while the tax assessment base (profit or surplus, depending on the type of income realized in the GbR activity) is determined at the level of the GbR (profit determination / Surplus determination object) and is determined separately and uniformly as described above.
The type of taxable profit determination depends on the respective activity of the GbR:
In the case of a non-commercial GbR (normal case), the income must be determined according to the principles of the types of surplus income. See → Participations in asset management partnerships as well as → Zebra companies and → property communities.
If a GbR is (exceptionally) commercially active, there are two types of profit determination under tax law:
If there is a tax law obligation for bookkeeping and accounting (§ 4 Paragraph 1 EStG, §§ 140 ff. AO), the tax law profit is according to § 4 Paragraph 1, § 5 and § 15 Paragraph 1 Clause 1 No. 2 EStG to be determined in two stages according to the principles of co-entrepreneurship. For details, see → Open trading company.
If there is no accounting and accounting obligation under tax law and if no books are kept voluntarily, the tax profit can be determined in accordance with Section 4 (3) EStG using the → income surplus calculation. Please refer to this entry for detailed questions on determining the winnings.
For the determination of the income of a freelance GbR see → Partnerships.
3.3. The company under civil law in the other types of taxes
3.3.1. value added tax
The sales tax entrepreneur term is defined in § 2 UStG. Accordingly, an entrepreneur is any person or group of persons who independently carries out a commercial or professional activity. The intention to make a profit is immaterial. As a result, the external GbR can be an entrepreneur within the meaning of the UStG and is therefore liable for the VAT. The concept of → co-entrepreneurship does not apply here.
The GbR is the sole debtor of the sales tax (§ 2 Abs. 1 UStG). An exception to the fact that the shareholders themselves are debtors of the VAT can only be made to a limited extent for the relationship and the Exchange of services between the GbR and its shareholders are accepted (mostly cases of the so-called special BV I). See BMF of January 26, 2007, Federal Tax Gazette I 2007, 211 as well as → co-entrepreneurship.
3.3.2. Business tax
The taxable person of the trade tax is the GbR as PersG with all its commercial activities according to § 5 Abs. 1 Satz 3 GewStG. Problems with the exact determination of the business tax subject can arise with internal companies.
3.3.3. The other real and transaction taxes
For the Property tax As the second important real tax, § 10 GrStG (in conjunction with the BewG) stipulates the exclusive tax liability of the GbR if the latter is the owner of a property (see above).
According to § 13 GrEStG, the acquisition of property itself also shows the GbR as the sole debtor of this special transaction tax. In the Real estate transfer tax However, there are peculiarities in transfer processes between the GbR and its shareholders. As a result, the ownership share of a partner in the property, in which only the legal quality changes (example: in the case of a contribution in kind, sole ownership is now converted into a 50% total right of ownership), is not taxed (§§ 5 f. GrEStG; result: the Half is not recorded). Another peculiarity is provided for a change in the shareholder base, where a serious change in the shareholder structure constitutes a fictitious acquisition (Section 1, Paragraph 2, Letter a and Paragraph 3 of the GrEStG).
In the ErbStG, too, in the event that the GbR becomes the recipient or heir, its sole tax liability is stipulated in accordance with Section 20 (1) ErbStG. Only in the case of an oHG that manages assets, in which a participation is the object of the gift, Section 10 (1) sentence 3 ErbStG is based on the direct acquisition of the relevant WG.
3.3.4. Other (§ 35 EStG and solidarity surcharge)
The solidarity surcharge is only levied by the shareholders as an annex tax to income tax in accordance with Section 2 No. 1 SolZG.
Bad system on the other hand, the trade tax paid by the GbR is offset against the income tax of the shareholders in accordance with Section 35 (3) EStG. This crediting, which is to be applied for the first time in VZ 2001, assumes that the trade tax measurement amounts set against the GbR are taken from the shareholders proportionally can be used to reduce their respective income tax liability.
3.4. Summary overview
The statements made above on the treatment of the GbR in tax law can be summarized as follows (taken from Preißer, Die Steuerberaterprüfung 2016, 15. A., Volume 2, Part B, Chapter I 1):
1. Income tax
Section 15 Paragraph 1 Clause 1 No. 2 EStG in conjunction with Section 1 Paragraph 1 EStG
the GbR; possibly the G’fter in relation to the GbR
Section 2 (1) of the UStG
Section 5 (1) sentence 3 GewStG
4. Property tax
Section 10 GrStG in conjunction with BewG
5. Real estate transfer tax
§ 13 GrEStG
6. Inheritance Tax
§§ 2, 20 Abs. 1 ErbStG
Fig .: Treatment of the GbR in tax law
4. Special case: accounting for the participation
The following statements are based on Preißer / Pung, 2012, Part B, Chap. VI.
The participation in a Personal Act and thus also in a GbR can be held in private as well as in business assets. As soon as it is a question of an operational participation and the shareholder draws up a balance sheet, the question arises as to the identification of this participation.
The problem here is a divergent balance sheet presentation in commercial and tax law (constant ruling of the BFH see also BFH judgment of June 24, 2009, VIII R 13/07, BStBl II 2009, 993, BFH judgment of April 2, 2008, DStRE 2008 , 786; BFH judgment of 24.3.1999, BStBl II 2000, 399).
Under civil law, the treatment is based on the understanding of the whole hand (see §§ 717, 719 BGB). In the case of the transfer among the living, the participation represents a separate right or a bundling of the individual legal relationships and thus a share in all economic goods of the collective hand. Accordingly, under civil law, participation in individual economic goods is not possible with a GbR. However, the disposition is restricted by the participation powers of the other shareholders.
The BFH, on the other hand, consistently classifies a participation in a PersG as "the ideal shares of the shareholder in the individual economic goods of the total property" or as a fractional community (BFH judgment of April 2, 2008, DStRE 2008, 786). In terms of tax law, the BFH already qualifies the (paid) acquisition of the participation as a (paid) acquisition of shares in the individual assets belonging to the company's assets (BFH judgment of June 24, 2009, VIII R 13/07, BStBl II 2009, 993). This also includes cases of contribution (in the case of a judgment: contribution of a sole proprietorship). Consequently, the sale of the stake is also to be seen as a transfer of the non-material shares in the individual assets of the PersG. Linked to this is the problem of the lack of a uniform form of representation for the capital statement of a partner in a Personal Law.
While the participation in a property law is considered an asset under commercial law, because it meets the criteria of independent marketability (individually procurable, salable and investable) and can therefore be assessed individually, the participation is denied the "asset quality" under tax law. The BFH has developed a two-stage approach for this. In the permanent case (including BFH judgment of March 24, 1999, BStBl II 2000, 399 and of March 4, 2009, BFH / NV 2009, 1953), the first step is not to report the participation as an independent flat share.
There is a material-legal re-qualification of the participation in an "ideal share in the individual economic goods of the total property" according to § 39 Abs. 2 Nr. 2 AO. However, this does not change anything (for reasons of simplification) in the creation of a balance sheet item "Participation in partnerships" in the tax balance sheet. With the second step, the profit determination at the level of the GbR, which is communicated to the shareholders involved, the transparency concept of § 15 Abs. 1 Satz 1 Nr. 2 EStG is to be taken into account.
This view of the BFH is countered by the fact that with a stringent interpretation of the BFH Rspr. an identification of the participation in a Personal Act in the balance sheet of the shareholder in the final result is not possible due to a lack of »asset quality«. In practice, the so-called mirror image method has prevailed, according to which the participation statement in the tax balance sheet of the shareholder is a mirror image of the capital account statement including the special and supplementary balance sheets of the main company.
The "mirror image method" avoids duplicate or missing recording of profit shares, so that profit distributions are irrelevant. The balance sheet problem of an automatic increase in the valuation of the participation through a profit share achieved (and credited to the capital account of the propertied persG), whereby (in principle) a profit-increasing process occurs, is ensured by downgrading to a non-profit process (off-balance sheet reduction or »quasi Deposit "; a loss allocation is treated as a" quasi-withdrawal "or added off-balance sheet).
The following points suggest that participation in a GbR should also be treated as an independent balance sheet item = economic asset in tax law (taken from Preißer / Pung, 2012, partially abbreviated):
In connection with the arithmetical division of total ownership into fractional ownership in accordance with Section 39 (2) No. 2 AO, the ruling of the BFH already owes the proof of the necessity of "separate attribution for taxation" (see Section 39 (2) No. . 2 clause 2 AO).
According to § 124 HGB and through the ruling of the Federal Court of Justice, the entrepreneurial external GbR has also been brought closer in many facets to the legal persons, so that the treatment of the participation as "ideal shares in the individual assets" is no longer convincing.
The precedent of civil law does not allow an interpretation contra legem because of the compulsory wording of § 719 Paragraph 1 Clause 1 Clause 2 BGB.
According to the understanding of the system in the comparison of business assets, there are enough intra-balance sheet corrections to prevent undesired tax-law profit disclosure. An off-balance sheet correction is also possible. The intention of the BFH to prevent a tax-irrelevant item from entering the tax balance sheet as an asset can therefore be satisfied with existing instruments.
There are also indications from other rulings of the BFH: Various rulings by the BFH in the context of Section 15 (1) sentence 1 no dated 11.12.1997, BStBl II 1999, 401 on the zebra society), from 22.11.1994, BStBl II 1996, 93 and from 23.4.1996, BStBl II 1998, 325 on the split-up of the company).
In summary, due to the principle of relevance, since all the requirements for the capitalization of the participation in a personal property law are present under commercial law and, as explained above, there are no objections to recording it as an economic asset, there are many arguments in favor of allowing the accounting of the participation in a personal property law as an independent balance sheet item. Valuation aspects are probably irrelevant here, since the "risk" of double or advance recording of the profit and loss shares from the investments can be countered by the "mirror image method".
Weimar et al., Changes in the number of partners in the partnership, NWB Fach 18, 4355; Haack, The Silent Society, NWB Fach 18, 4251; Haack, Die Freiberufler-GbR - foundation of tax consultants -, NWB 2009, 2266; Preißer / Pung, The taxation of partnerships and corporations, Commentary, 2. A. 2012, Part B I. and VI; Preißer, Die Steuerberaterprüfung 2016, 15. A., Volume 2, Part B, Chap. I 1; Grobshäuser et al., Finance and Taxes Vol. 7, 10 ff .; Karsten Schmidt, in: Munich Commentary on the HGB, 2. A., § 123 HGB.
6. Related Lexicon Articles
→ Change of tax assessments according to § 175 AO
→ Atypical quiet company
→ Participations in asset management partnerships
→ Fractional communities
→ Income from business operations
→ Income surplus calculation
→ Supplementary balance sheet
→ Commercial partnerships
→ Determination of profits
→ Property communities
→ Open trading company
→ Quiet company
→ Contracts between relatives
→ Zebra societies
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