Shareholder loans pattern
Pattern shareholder loans
Sample: IHK request to the company of the Gomba. Maintaining the share capital and the shareholder loan. Another structure for shareholder loans in the future: BFH has revoked its former responsibility.
As a partner of a limited liability company, you would like to grant a private equity loan to the limited liability company. It can not be ruled out that the loan volume will be canceled due to a possible maldevelopment in the company. The elimination of an equity replacement credit claim, for example in connection with the dissolution or insolvency, has led to subsequent acquisition costs for the investment according to previous case law and from the point of view of the tax authorities.
In the event of the termination or sale of the investment, these subsequent acquisition costs may be claimed in tax terms of up to 60 per cent. The decision was published on 27.09.2017. In the view of the Federal Finance Court, this amendment does no longer allow the qualification of shareholder loans or the use of guarantees in later purchase costs. Incidental acquisition costs of an investment are only to be recognized according to the commercial definition of § 255 HGB.
Equity-replacing shareholder loans
If equity-replacing shareholder loans cease to exist, they may no longer be tax-deductible after the change of legal form in the form of subsequent acquisition costs on the sale or termination of the shares. A tax usage is therefore no longer possible. A default of a shareholder loan, eg EUR 100,000, would therefore no longer have a tax-reducing effect as an event in private assets.
The new case-law therefore only applies to new loans, those granted after the date of publication, ie after 27 September 2017. The granting of equity-replacing shareholder loans to a limited liability company should no longer take place in this way in the future. All these instruments have in common that they can be used in case of damage for tax purposes.
Another possibility would be a loan for other resources. For example, it may be a sole proprietorship or a limited liability company. The loss of the loan in this case results in an immediate deductibility of the operating costs due to a lack of reclassification into subsequent acquisition costs. A second company is probably difficult if the participation quota amounts to more than 25 percent (“§ 8b para. 3 KStG”).
In this case, the default of the loan can only be deducted if it can be proved that a third party, eg a house bank, would have granted the loan under the same conditions. Experience has shown that this proof of shareholder loans is difficult. Due to the exceptionally complex topic of shareholder loans, it is important to wait and see what consequences the changed and future jurisdiction would have for the large number of individual cases.