Tag Archives: Lawyers

Politics Law Society

CJEU – Selective prohibition on sale of luxury items

CJEU – Selective prohibition on sale of luxury items

CJEU - Selective prohibition on sale of luxury items

In a ruling from December 6, 2017, the Court of Justice of European Union (CJEU) held that a selective distribution system for luxury items does not constitute a violation of the prohibition on restrictive practices under EU law if certain conditions are fulfilled.

Suppliers of luxury items can prohibit their authorized dealers from selling items online via third-party platforms such as Amazon or eBay. In a judgment from December 6 of 2017, the Court of Justice of the European Union established that this does not constitute a violation of competition law or the prohibition on restrictive practices under EU law (Az.: C-230/16). The CJEU ruled that a selective distribution system for luxury items that is designed primarily to maintain a luxury image is acceptable as long as certain conditions are fulfilled.

According to the ruling, the prohibition on restrictive practices under EU law is considered not to have been violated if the resellers are selected on the basis of objective criteria of a qualitative nature, and these are applied consistently to all resellers under consideration without discrimination. At the same time, the CJEU ruled that the established criteria cannot extend beyond what is necessary.

The case before the CJEU concerned the sale of luxury items via third-party platforms online. The business sold luxury cosmetics in Germany. To maintain the luxury image of some of its brands, these cosmetics are sold through a selective distribution network. To this end, the authorized dealers must meet certain requirements regarding the environment, facilities and equipment. While they are allowed to sell the luxury items online on their own homepage, they are prohibited, on the other hand, from selling the items online via third-party platforms that are recognizable to consumers. One authorized dealer nevertheless decided to sell the items on Amazon. The company brought a legal action against this citing the contractual prohibition. However, the Oberlandesgericht (OLG) Frankfurt, Frankfurt“s Higher Regional Court, had doubts concerning whether the prohibition clause is valid or whether it violates the prohibition on competition. It therefore referred the matter to the CJEU.

The Court of Justice found the clause to be valid provided the conditions mentioned above are fulfilled. We at the commercial law firm GRP Rainer Rechtsanwälte note that the Court held that the prohibition on restrictive practices under EU law does not preclude the use of a contractual clause if it serves to maintain the luxury image of the goods in question. Notwithstanding this, the ruling likely raises questions. It will need to be clarified on a case-by-case basis where high quality ends and luxury begins. Lawyers who are versed in the fields of competition and antitrust law can offer advice in the event disputes between distributors and companies.

https://www.grprainer.com/en/legal-advice/antitrust-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

BGH – Managing directors acting as front men can also be held liable

BGH – Managing directors acting as front men can also be held liable

BGH - Managing directors acting as front men can also be held liable

Formal managing directors who are only appointed to act as front men are subject to criminal liability as well. This was reaffirmed by the Bundesgerichtshof (BGH), Germany“s Federal Supreme Court, in a ruling from October 13, 2016 (Az.: 3 StR 352/16).

A managing director who fails to fulfill his or her obligations may be held liable. There are many examples in practice of companies with a de facto managing director who is not registered in the commercial register but is effectively responsible for managing the business, and a formal managing director who barely has any internal responsibilities and serves merely as a front man. The managing director acting as a front man can nonetheless be held accountable under criminal law as well. We at the commercial law firm GRP Rainer Rechtsanwälte report that this principle has been reaffirmed by the Bundesgerichtshof.

In the case in question, the accused was the formal managing director of a Gesellschaft mit beschränkter Haftung, a type of German private limited liability company commonly known and referred to as a „GmbH“. In practice, business was conducted by another person. Charges were brought against the formal managing director because of the company“s failure to ensure proper payment of social security contributions.

The accused was registered as the sole managing director and appointed by way of a shareholder resolution. The BGH held that this status as formal managing director alone justified her being held accountable as a corporate body vis-à-vis third parties, which is why it had been her duty to ensure proper payment of social security contributions. The fact that there was another person with such extensive decision-making powers and responsibilities that they were viewed as the de facto managing director did not preclude this conclusion.

The Court went on to say that even if the formal managing director has no significant internal responsibilities and serves merely as a front man, this does not absolve him or her of criminal liability. A person who is formally appointed as managing director was said to have the capacity, both in law and in practice, to carry out the full scope of actions associated with this position at all times, with accountability stemming from his or her status as a corporate body. The BGH further ruled that even a managing director who is appointed only as a matter of form is not incapable of ensuring proper payment of social security contributions despite lacking responsibilities; if necessary, the managing director acting as a front man would have to turn to the courts for help in exercising his or her rights. Otherwise, he or she would have to resign from their post.

Lawyers who are experienced in the field of company law can serve as qualified advisors in relation to matters concerning the liability of managing directors.

https://www.grprainer.com/en/legal-advice/company-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

GRP Rainer Rechtsanwälte – Experience suggests planning for business succession early on

GRP Rainer Rechtsanwälte – Experience suggests planning for business succession early on

GRP Rainer Rechtsanwälte - Experience suggests planning for business succession early on

Business succession is an issue that preys on the minds of many small and medium-sized enterprises and family-run businesses. Yet finding a suitable successor can prove challenging.

In the coming years, business succession will be on the agenda of a lot of small and medium-sized companies and family-owned businesses. While searching for a suitable successor to manage the company at the highest level is of utmost importance for the survival of the business, our experience at the commercial law firm GRP Rainer Rechtsanwälte suggests there is a tendency to kick the matter into the long grass. There are several reasons for this: One the one hand, the uncertainty resulting from tax reforms is increasingly playing a role, and on the other hand, emotional reasons can make it difficult for those in charge of companies to entrust others with the fate of their business.

Demographic trends are also making it harder to find a suitable successor. More and more bosses are set to retire. At the same time, there are fewer and fewer young people available to take up the reigns. It is therefore all the more important to make plans for business succession and implement these in good time.

In the case of family-run businesses, the expectation is often for the baton to be passed on to the next generation. In doing so, it is important to consider the implications both from a tax perspective as well as with respect to succession law. One also needs to address the issue of whether, for instance, one“s own children are even interested in continuing the business, or whether they have the necessary qualifications.

Another option is to sell the business. Preparations ought to be made well in advance of the sale. In addition to searching for a potential buyer, priority should also be given to valuating the business in order to determine an appropriate selling price. It is equally important to account for existing employment contracts and inheritance claims. Depending on its corporate form, the business could also potentially be sold to a fellow partner or shareholder.

Business succession is a complex subject in relation to which a number of legal aspects need to be considered. Long-term and forward-looking planning is therefore essential. Lawyers who are experienced in the field of company law can offer advice when searching for a suitable successor and ensure a smooth transition.

https://www.grprainer.com/en/legal-advice/private-clients/law-of-succession/business-succession.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politik Recht Gesellschaft

GRP Rainer Rechtsanwälte – Experience in resolving shareholder disputes

GRP Rainer Rechtsanwälte – Experience in resolving shareholder disputes

GRP Rainer Rechtsanwälte - Experience in resolving shareholder disputes

If a dispute among shareholders cannot be resolved, it is in the interests of all parties involved to come to a solution that does not jeopardize the company“s existence.

While shareholders are usually in agreement about the strategy and objectives of the business when the company is being established, this harmony can give way to differences of opinion between the shareholders as the years go by, e.g. regarding the company“s future direction or filling the position of managing director. If both sides remain stubborn and the dispute cannot be resolved, it becomes necessary to find suitable solutions for the benefit of the company.

Our experience at the commercial law firm GRP Rainer Rechtsanwälte shows that two options typically present themselves as a way of ending a shareholder dispute: redemption of a shareholder“s shares or removal of the managing director. A company“s central decision-making body is the general meeting of the shareholders, and it is here that shareholders“ voting rights play a pivotal role.

Removing a shareholder-managing director can prove problematic, since he or she is also entitled to vote and may thus be able to prevent his or her removal. To prevent him or her from exercising their right to vote, the removal needs to proceed on the basis of good cause or the shareholder-managing director must be clearly incapable of properly conducting business. One example of good cause justifying removal is a gross dereliction of duty by the managing director, for instance in the form of balance sheet manipulation, accepting bribes, tax evasion, unauthorized use or disposal of company assets, or persistent disregard of instructions from the shareholders. Mere mistrust of the shareholder-managing director does not justify loss of his or her voting rights.

Redemption of a shareholder“s shares requires objective justification based on grounds incorporated into the articles of association. Examples of relevant grounds include the shareholder becoming insolvent, compulsory execution being levied against his or her shares, or divesting shares to ineligible persons under the articles of association.

Complex legal regulations need to be observed in the context of a dispute among shareholders. It is equally important not to ignore tax implications. Lawyers who are experienced in the field of company law can serve as competent advisors in trying to find appropriate solutions.

https://www.grprainer.com/en/legal-advice/company-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Kontakt
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
+49 221-27 22 75-0
+49 221-27 22 75-24
info@grprainer.com
http://www.grprainer.com/en

Politics Law Society

GRP Rainer Rechtsanwälte – Assessment of authorized dealers“ right to claim compensation

GRP Rainer Rechtsanwälte – Assessment of authorized dealers“ right to claim compensation

GRP Rainer Rechtsanwälte - Assessment of authorized dealers" right to claim compensation

Not unlike in the case of commercial agents, authorized dealers may also be entitled to claim compensation after their contract has been terminated. That being said, certain conditions need to be fulfilled in order for this to happen.

There are no regulations that specifically address an authorized dealer“s right to claim compensation. However, the provisions pertaining to a commercial agent“s right to claim compensation can sometimes be applied by analogy. We at the commercial law firm GRP Rainer Rechtsanwälte note that to this end it first needs to be assessed whether the relevant requirements have been met.

Commercial agents are entitled to claim compensation after their contract has been terminated if they have established new business contacts for the company that the latter continues to be able to benefit from. Authorized dealers may also be entitled to claim compensation pursuant to these provisions. In a ruling from February 5, 2015, the Bundesgerichtshof (BGH), Germany“s Federal Supreme Court, clearly set out the conditions that need to be met for this to happen (Az.: VII ZR 315/13). The right to claim compensation only arises if the authorized dealer is integrated into the company“s sales force and obligated to make their client data available to the company. In other words, not unlike in the case of commercial agents, the company must be able to make continued use of the business contacts for its own purposes.

In the instant case, the authorized dealer did not have a right to claim compensation because the company had not been entitled to use customers“ data; the company had contractually undertaken upon termination of the contract to block any customer data it had been provided with, not to use said data and to delete it if so requested by the authorized dealer. For this reason, the BGH concluded that the company had not been able to readily exploit the customer data, and the authorized dealer was therefore not entitled to claim compensation.

The Bundesgerichtshof“s ruling raises a number of practical issues. In particular, it needs to be clarified whether the transfer of customer data has to be explicitly regulated in the authorized dealership agreement or whether this obligation can indirectly arise from the contractual provisions. Furthermore, the BGH left open the question of whether it is possible for the obligation to transfer customer data to be regulated in a separate agreement.

The right to claim compensation is a controversial topic in the case of authorized dealers. Lawyers who are experienced in the field of commercial law can advise both business and authorized dealers on drafting agreements as well as in the context of legal disputes.

https://www.grprainer.com/en/legal-advice/commercial-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

EGC upholds declaration of invalidity with respect to a design

EGC upholds declaration of invalidity with respect to a design

EGC upholds declaration of invalidity with respect to a design

In a ruling from March 14, 2018, the General Court of the European Union (EGC) upheld a declaration of invalidity with respect to a design. The reason: the design had already been made publicly available before its registration.

A design encapsulates a product“s appearance; its shape, its pattern, its colour. Registering a design serves to protect the design itself as well as the work put into it from counterfeiting. We at the commercial law firm GRP Rainer Rechtsanwälte note that in order for a design to be registered it needs to be distinct from other designs that are already well-known. The General Court of the European Union recently upheld a declaration of invalidity with respect to the registration of a design because it had already been made available to the public prior to its registration (Az.: T-651/16).

According to a regulation of the European Union, a Community design is capable of being protected if it is new and has individual character. A design is deemed not to be new if, among other reasons, it was made publicly available prior to the 12 months preceding the date of priority claimed. An exception is that the relevant professional circles within the EU could not have been aware of it.

In the instant case, a US company had applied in November of 2004 to have a Community design registered for shoes and in doing so claimed priority from a patent application submitted in the USA on May 28, 2004.

In 2013, a French company applied to have the design declared invalid on the basis that it was not new. It argued that the design in question had already been made available to the public prior to May 28, 2003. As such, it was claimed that the design had been known to the public for more than the 12 months prior to the patent application. In 2016, the European Union Intellectual Property Office (EUIPO) declared the design invalid on account of its lack of novelty.

The EGC upheld the decision. It ruled that the design had been made available to the public prior to May 28, 2003. The Court went on to note that it was not necessary for the disclosure to have taken place within the EU.

A design is distinct from a protected trademark. It is possible for trademark rights to be violated even if there is merely the potential for confusion with the protected product. Lawyers who are experienced in the field of intellectual property law can offer advice.

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

BGH on managing directors“ liability for competition violations

BGH on managing directors“ liability for competition violations

BGH on managing directors" liability for competition violations

Managing directors may be liable for their company“s violations of competition law. Having said that, the Bundesgerichtshof (BGH), Germany“s Federal Supreme Court, has severely limited managing directors“ liability (Az.: I ZR 242/12).

Under earlier case law, the liability of managing directors in the event of competition violations was interpreted more broadly. Liability was a serious prospect even if the managing director became aware of competition violations committed by employees but made no effort to stop them. In a ruling from June 18, 2014, the BGH distanced itself from this precedent. In doing so, we at the commercial law firm GRP Rainer Rechtsanwälte note that it significantly reduced the scope of managing directors“ liability for violations of competition law.

According to this ruling, managing directors shall only be personally liable for unfair trading practices if they were either actively involved or ought to have prevented the competition violations because of an affirmative obligation to act pursuant to the general principles of tort law. The BGH held that a managing director“s status as an executive body and general responsibility for business operations do not by themselves give rise to a duty on his or her part towards external third parties to prevent violations of competition law. However, personal liability shall still apply if the managing director personally commits or orders the competition violation in question.

While the managing director“s duty to manage the business in a prudent manner was said to encompass ensuring that legal infringements such as competition violations do not occur, the BGH went on to say that this duty exists only in relation to the company and not external third parties. In the case of general liability, this would impose an almost incalculable risk on the managing director.

This judgement does not fundamentally preclude personal liability on the part of managing directors in the event of competition violations but rather limits its scope. Liability on the part of a managing director requires that the competition violation be based on conduct that can be blamed on the managing director. By way of example, the BGH cited unlawful use of a company name or a company“s general approach to advertising and marketing, matters which would normally be decided at an executive level by managing directors.

It is possible for managing directors to be faced with liability vis-à-vis their company. Lawyers who are experienced in the field of company law can serve as an expert point of contact when it comes to issues pertaining to managing directors“ liability.

https://www.grprainer.com/en/legal-advice/company-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

BSG on mandatory social security contributions for managing directors

BSG on mandatory social security contributions for managing directors

BSG on mandatory social security contributions for managing directors

Mandatory social security contributions for managing directors are a controversial subject. The Bundessozialgericht (BSG), Germany“s federal supreme court in relation to social security matters, recently ruled that managing directors shall, as a rule, be deemed to be employees of a GmbH.

The issue of mandatory social security contributions for managing directors can sometimes give rise to significant supplementary contributions. In its judgments from March 14, 2018 (Az.: B 12 KR 13/17 R and B 12 R 5/16 R), the BSG held that managing directors of a GmbH, a type of German private limited company, shall, as a rule, be deemed to be employees of the GmbH and thus subject to mandatory social security contributions. The Court set forth strict requirements for a managing director to be classified as self-employed. In particular, we at the commercial law firm GRP Rainer Rechtsanwälte note that it is essential that the managing director has sufficient legal scope for action for the purpose of determining the fate of the company.

In the first case, the managing director bringing the legal action owned a 45.6 per cent interest in the registered share capital. Additionally, there was a so-called „Stimmbindungsabrede“, i.e. a voting commitment, with the GmbH“s second shareholder. In the other case, the managing director held only 12 per cent of the registered share capital. In both cases, the BSG ruled that the managing directors were to be deemed to be employees of the respective GmbHs and thus subject to mandatory social security contributions.

In its reasoning, the BSG noted that shareholder-managing directors of a GmbH shall only not be classified as employees if they have the legal authority to determine the fate of the company by exerting influence on the general meeting of the shareholders. This was said to be generally possible if the managing director holds more than 50 per cent of the registered share capital and is thus the majority shareholder. The Court went on to say that if the managing director holds only 50 per cent of the shares in the registered share capital or less, an employee relationship can then only be ruled out if the managing director has a full blocking minority stake as per express provisions in the articles of association and he or she is therefore able to prevent instructions being issued by the general meeting of the shareholders.

The BSG also stressed that it is not a matter of which powers the managing director has with respect to the GmbH“s external relations or how much latitude he or she has in carrying out their activities, e.g. with regard to working hours; the decisive factor is that the managing director has sufficient legal authority.

Lawyers who are experienced in the field of company law can advise managing directors and shareholders in relation to mandatory social security contributions.

https://www.grprainer.com/en/legal-advice/company-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

BGH – Misleading eye-catching advertising and significant purchasing decisions

BGH – Misleading eye-catching advertising and significant purchasing decisions

BGH - Misleading eye-catching advertising and significant purchasing decisions

An attention-grabbing or eye-catching advertisement needs to include a clear reference to correct possible erroneous preconceptions. According to the Bundesgerichtshof (BGH), Germany“s Federal Supreme Court, this is also true for economically significant purchases.

If an attention-grabbing or eye-catching advertisement is liable to mislead consumers, this needs to be cleared up with a clear reference that forms part of the eye-catching segment. We at the commercial law firm GRP Rainer Rechtsanwälte note that the Bundesgerichtshof has clarified in a judgment by default from September 21, 2017 that this also applies to significant purchasing decisions (Az.: I ZR 53/16). According to the case law of the BGH, a clear reference, denoted e.g. with an asterisk, can only be dispensed with under strict conditions. Moreover, it must be ensured that consumers are able to take in the qualification a single glance.

The instant case concerned an eye-catching advertisement from a real estate company promoting a financial investment on its website with a „Festzins Plus: 5,75% bis 6,25% Festzins pro Jahr“ (fixed rate plus: 5.75% – 6.25% fixed annual rate of interest). This financial investment was a subordinated loan. It was only after scrolling through lengthy passages of text that consumers reached the risk notices and were informed, among other things, about the risk of total loss. It only became clear after having read these notices that this did not amount to a guaranteed fixed rate of interest.

The BGH held that the consumer organisation bringing the action was entitled to file an injunction suit. The advertising in question was found to be misleading and in violation of the Gesetz gegen den unlauteren Wettbewerb (UWG), Germany“s Unfair Competition Act. Relevant misleading references are essential characteristics of a good or service in much the same way as the associated risks. The BGH ruled that the expression „Festzins plus“ (fixed rate plus) used in the eye-catching segment of the advertising was objectively inaccurate because it gave the impression of certainty regarding the payment of interest, even though this was dependent on not only the solvency of the borrower but also hinged on whether sufficient profit is generated. Accordingly, the Court concluded that this did not in fact amount to a fixed rate of interest. Furthermore, the risk notice included in the advertising, only to be found after a long scroll through the text, was found to be insufficient for the purposes of clearing up the error.

Misleading eye-catching advertising can give rise to injunction suits and claims for damages. Lawyers who are experienced in the field of competition law can advise on enforcing or fending off claims.

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/competition-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

BFH – Withdrawal of a partner with neutral impact on profits

BFH – Withdrawal of a partner with neutral impact on profits

BFH - Withdrawal of a partner with neutral impact on profits

In its rulings from May 16 and 30, 2017, the Bundesfinanzhof (BFH), Germany“s Federal Fiscal Court, has made it easier for a partner to withdraw from a partnership (Az.: IV R 31/14 and IV R 11/15).

In the view of the Bundesfinanzministerium, Germany“s Federal Ministry of Finance, the withdrawal of a partner need only have a neutral impact on profits if the withdrawing partner receives an operational unit or a partnership interest. In its rulings, the Bundesfinanzhof has taken a position contrary to this view. We at the commercial law firm GRP Rainer Rechtsanwälte note that pursuant to these rulings, partners now have more scope than was previously the case when withdrawing from partnerships while maintaining a neutral impact on profits and thus without disclosing hidden reserves.

In one of the cases, the partner had initially incorporated his share in a Kommanditgesellschaft (KG), a type of limited partnership under German law, into a newly established „Ein-Mann-GmbH & Co. KG“, i.e. a one-man limited partnership with a limited liability company (GmbH) as general partner. This withdrew from the KG on the same date and received in consideration all of the assets from a business division of the KG that was not organized as an operational unit. This business division was then continued by the newly established GmbH & Co. KG. While the tax authorities deemed this to be a profitable swap, the BFH took a different view in categorizing the transaction as an artificial division of partnership assets with a neutral impact on profits (Az.: IV R 11/15).

In the other case, a GmbH & Co. KG run by a father and son had been dissolved. The father received only a small proportion of the company“s assets; the lion“s share went to the son, who carried on the business alone. The competent tax office rejected the classification as a division of partnership assets with a neutral impact on profits, stating in its reasoning that the son had continued the business. The BFH took a different view here as well. It held that the company had ceased its activities as a consequence of its dissolution and complete termination, and there could therefore be said to have been a real division of partnership assets with a neutral impact on profits (Az.: IV R 31/14).

It follows from these two rulings of the BFH that the dissolution of a company and subsequent distribution of its assets among the partners is equivalent to a partner withdrawing from a continuing company.

Lawyers who are experienced in the field of company law can advise on matters ranging from the establishment to the dissolution of a company, with due consideration also being given to aspects relating to tax law.

https://www.grprainer.com/en/legal-advice/company-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en