This applies to PLTAs which were concluded before 1 January 2006 and do not contain any reference to the limitation period in Article 302(4) AktG of 9 December 2004. Such references could include, for example, wording such as “Loss assumption shall be made in accordance with paragraphs 1 to 302 of the AktG”. According to the BMF Circular, profit transfer agreements that must be pending before January 1, 2020 cannot be changed as set out above. The same applies to profit shifting agreements in which the Group company is a German public limited company. In 2004, Section 302 of the German Joint Stock Companies Act (AktG) was amended by the introduction of a new paragraph 4, which provided for a period of 10 years for claims arising from loss liability. Since many profitable transfer agreements with Companies of the GmbH Group concluded before 2004 contained only the wording of the earlier version of § 302 AktG (i.e. without the new paragraph 4) or only on § 302 para. 1-3 AktG, they did not contain the new wording of Paragraph 302(4) of the AktG and therefore did not correspond to § 17 of the KStG (did they still really correspond to the earlier version of § 17 of the KStG). The parties to certain former German profit transfer agreements (“PLTA”) take note of you. According to the circular of the Federal Ministry of Finance (“BMF”) of 3 April 2019, PLTA with controlled GmbH must be amended by 31 December 2019 to ensure that an existing income tax group will continue to be recognised in the future. This concerns PLTAs which were concluded before 1 January 2006 and no reference to the limitation period in Article 302(4) AktG of 9 December 2004. Such references could include, for example, wording such as “Loss assumption shall be made in accordance with paragraphs 1 to 302 of the AktG”. According to the previous administrative opinion (BMF of 16 December 2005), this requirement does not apply to contracts concluded before 1 December 2005.
It was closed in January 2006. However, the Federal Finance Court ruled differently in its judgment of 10 May 2017 (DStR 2017, 2429). The BMF is now following this interpretation […].
Categorised in: Uncategorized