Control And Profit And Loss Transfer Agreement

According to a recent circular of the Federal Ministry of Finance (BMF), certain performance transfer contracts must: which are used by German tax groups and which were completed before 1 January 2004 may be amended by 31 December 2019 at the latest in order to guarantee the benefits of the tax group (both retroactively and future) (see BMF Circular of 3 April 2019, reference IV C 2 – S 2770/08/10004). Crop Science has activities in the fields of seeds, phytosanitary protection and the control of non-agricultural pests. The creation of a German tax group presupposes that the parent company and the group company conclude a profit shifting contract. The conditions for the tax recognition of such an agreement have been amended several times over the last ten years, including the obligation for the parent company, after the agreement, to be liable for any losses suffered by the group company if the group company is a German limited liability company (GmbH). ยง 17 KStG, in its latest version, requires, inter alia, a dynamic reference to the legal provisions on the assumption of liability in the event of losses if the group company is a German public limited company (AG) by mutual agreement, as provided for in Paragraph 302 of the AktG. In order to protect the tax status of existing German tax groups, the BMF did not contest, in a previous circular, the tax treatment of such non-compliant profit shifting contracts, provided that they were concluded before 2004. On the other hand, a recent judgment of the Bundesfinanzhof (BFH) of 10 May 2017 (reference I R 93/15) called that treatment into question by the fact that all profit shifting agreements concluded by deutsche GmbH-Steuergruppen must include a dynamic reference to the provisions of Paragraph 302 of the AktG concerning the contractual assumption of losses. Following that judgment, the BMF requires, in its latest above-mentioned circular, that profit shifting contracts involving German corporate tax groups not be amended before 31 December 2019 at the latest to be recognised for tax purposes, unless they contain such a reference. Otherwise, the advantageous tax treatment of the tax group may be refused, both retroactively and in the future. It is important to note that, in addition to the amendment of the profit transfer agreement and the agreement of the general meetings of the parent and group companies, the revised contract for the entry into effect of the German Commercial Register must be registered and that, in accordance with the BMF Circular, the date of registration must comply with the aforementioned deadline. .

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