Establish a foundation in Germany as a company: asset transfer and family foundation

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In the transfer of assets to a non-profit foundation, the distinction is made as to whether the assets are transferred from private assets or from a company's assets. So you have to look at the founder and the founder. This is crucial for asset growth. German-Stiftung reasons-5

Here writes for you:


Reinhard Schinkel 58Is Reinhard Schinkel according to Handelsblatt one of Germany's best tax advisors and specialist author for tax law.


From the author:





If the transfer is transferred to a non-profit foundation free of charge, the income tax effects are identical to the effects of the transfer to a non-profit foundation, since there is no gain on the sale.

When transferring operating assets, a special feature must be taken into account: In addition to the transfer to book values ​​of companies sub-companies and participations in corporations, it is also possible to transfer individual assets while avoiding the discovery of the hidden reserves (withdrawal profit).

The basic prerequisite for this is that the asset is turned directly to the tax-benefit (non-profit) foundation. The basis for this benefit is the § 6 Abs.1 Nr.4 Satz 4 EstG.

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Donate to reduce income

Particularly interesting for donors is the donation deduction possible in connection with the transfer of assets to a charitable foundation. Here, the legislature is very generous. For donations to the assets of a foundation, up to 1 millions of euros can be reduced as a donation within a ten-year period.

It is also interesting to note that this grant can be distributed at the request of the individual years. So if you pay 01 1 million euros in the foundation stock of a foundation, you could be taxing 01 Euro in the year 100.000 and the following nine years.

Donate at different heights

The basis of the donation deduction is, of course, a proper donation receipt. The donor is not bound in the distribution of the donations, he can apply for different heights.

In addition, donations can, of course, also be donated to a non-profit foundation which can be tax-deductible within the framework of the maximum amounts (20% of income or 4 per thousand of sales and salaries of company donations).

Gift tax and land transfer tax

Capital appreciation at the foundation triggers taxation in accordance with the Inheritance / Gift Tax Act. However, here the exemption from the gift tax in accordance with $ 13 ErbStG applies if the foundation is actually recognized as a charitable and the assets are supplied promptly.

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Real estate transfers are exempt from the basic income tax. The paradox here is that this is a taxable acquisition on the part of the foundation and thus the income tax exemption in accordance with §3 No. 2 GrEStG, regardless of whether actually gift tax is paid.

Taxes in the Family Foundation

In a family foundation, the beneficiaries also have to pay taxes. How does that look in detail? A family foundation is established to hold the assets together and to provide family members with permanent support through so-called Destinate payments. Beneficiaries of a family foundation are called beneficiaries. But how are these cash flows to be taxed at the beneficiaries?

The topic of distinctions is very complex. Because, as with all other forms of foundation, the foundation stock is usually not touched, and only the income generated benefits the beneficiaries.

How is taxed?

These items are taxed either as income from capital assets (§20 EStG) or are recognized as other income in accordance with § 22 EStG.

If the taxation is as income from capital assets, the foundation is obligated to deduct from the distributions in advance 25% capital gains tax plus solidarity surcharge and possibly church tax. The amount after deduction of the tax accrues to the Destinatären.

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Right to choose the tax rate

There is a right of choice for the beneficiaries: If the personal tax rate is lower than 25%, the taxation of income should be included in the income tax assessment. In that case, the income will be recorded and the tax paid by the Foundation will be credited as a tax pre-payment.

For this purpose, it is necessary to submit a tax certificate to the Residence Bank.

Which income is taxed?

The taxes are paid to the tax office responsible for taxation of the foundation. A capital gains tax return is submitted for this purpose. With the payment of this tax, taxation at the beneficiary level is completed. This withholding tax has a final effect (final withholding tax).

In the case of taxation as other income, only 60% of the income is entered in the income tax. 40% will be tax-exempt in accordance with § 3 No. 40 EStg (the so-called partial income tax procedure.) What is more favorable in case of doubt should be clarified in advance with the personal requirements of the beneficiaries.

When is taxed?


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  • The grants can be agreed as constant annuities or
  • (eg no seat in the board of trustees), or the use of the income is excluded
  • the beneficiaries provide a consideration of the Foundation

it is other income according to § 22 EstG.

If these criteria are not met, the payments will be taxed as capital gains. In this respect, there is a certain room for maneuver.

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