Geme einem kurzlich ver-ffentlichten Abschreiben des Bundesfinanzministeriums (BMF) messen bestimmte Gewinn- und Verlustabf-hrungsvertr-ge (Ergebnisabf-hrungsvertr-ge), die von deutschen Steuerkonzernen genutzten und vor. January 31, 2004 was amended no later than December 31, 2019 to guarantee the benefits of the tax group (retroactive and future) (see circular BMF of April 3, 2019, IV C 2 – S 2770/08/10004). The contracting parties take note of certain old German profit and loss transfer agreements (« PLTA »). In accordance with the Federal Ministry of Finance circular of April 3, 2019, the PLTA must be amended by December 31, 2019 with controlled SARLs (« SARL ») to ensure that an existing income tax group will continue to be recognized in the future. The PLTTs concerned include those that were closed before 1 January 2006 and do not contain references to the provisions of Article 302, paragraph 4, of the Act of 9 December 2004. These references may contain formulations such as .B. « Losses are covered in accordance with Article 302, paragraphs 1 to 3, of the act. » According to the administration`s previous opinion (BMF of December 16, 2005), this requirement did not apply to contracts concluded before January 1, 2006. The Bundesfinanzhof decided otherwise in its judgment of 10 May 2017 (DStR 2017, 2429). The BMF is now following this interpretation. Existing contracts must therefore be amended by December 31, 2019 to include a dynamic reference to the modified version of page 302 of the aktG in its current version.
The minimum five-year period for tax groups has not been revived. The amendment to the PLTA must be made in writing and approved by the shareholders of the control company and by the parent company. The decision of the GmbH shareholder must be notarized and recorded in its trade register so that the transposition can begin in a timely manner. For subsidiaries in the legal form of a limited company (i.e. AGs and not limited liability companies such as SARLs), AktG Rule 302 already applies to the law. Changes in administrative practice are therefore not relevant to these companies. In order to protect the tax status of existing German tax groups, the BMF did not, in a previous circular, question the tax treatment of such non-compliant profit and loss transfer contracts, provided they were concluded before 2004. On the other hand, a recent bundesfinanzhof (BFH) ruling of 10 May 2017 (reference I R 93/15) called this treatment into question by requiring that all profitable agreements concluded by Deutsche GmbH`s tax groups contain a dynamic reference to the provisions of paragraph 302 of the aktG concerning the acquisition of contractual losses.
In accordance with the BMF circular, profit and loss transfer contracts that must expire before January 1, 2020 cannot be amended as noted above.