Can i have 2 FHA loans

Shareholder loan with a GmbH: Avoid a vGA with the right agreement

| A GmbH typically obtains the necessary capital from its house bank. But loans from the shareholders are also very popular in practice. Because if the shareholder has adequate liquidity, the funds of the GmbH can be made available comparatively quickly. The practical case shows which requirements the loan must meet for tax recognition. In particular, the interest rate is considered, taking into account the principles of a hidden profit distribution (vGA). |

1. Facts

At the beginning of 2018, the Graller-GmbH in Remscheid urgently needs liquid funds i. H. of 500 kEUR. Since the negotiations with the house bank are more difficult than expected, the sole shareholder A. Graller (non-denominational) has agreed to grant the GmbH a corresponding loan.

Graller asks his tax advisor which special features he has to consider. The shareholder is exempt from the prohibition of self-contracting under Section 181 of the German Civil Code.

2nd solution

The tax advisor first goes into general requirements that the loan agreement must meet. The (appropriate) interest rate is then discussed.

2.1 Structure of the loan agreement

Even if this is not absolutely necessary under civil law, the written form should be adhered to - if only for reasons of evidence. Furthermore, it must be clarified (especially in the case of contracts with a controlling shareholder) whether the corresponding conclusion of the contract must be decided by the shareholders' meeting. Corresponding regulations in this context are regularly the subject of the articles of association.

Note | In terms of content, the contract should contain what external third parties would conclude in the specific form (external comparison). The relevant criteria are usually checked on the basis of the circumstances of the individual case.

When drafting the contract, it must then be decided whether and, if so, how the loan could be secured. From a tax point of view, it should be noted in this context that a security for the loan claim of a controlling partner is not absolutely necessary. This is because the security already lies in the possibilities of influence that the controlling shareholder regularly has on the company (see Klingebiel / Lang / Rupp in Dötsch / Pung / Möhlenbrock (D / P / M), KStG, Section 8 (3) Part D) , Item 1111).

At non-controlling shareholders consequently, these principles do not apply. But even in these cases, a lack of collateral does not necessarily lead to a vGA, if

  • a tidy and conscientious manager z. B. would have waived a security due to the creditworthiness of the obligee or
  • the lack of security is compensated for by a corresponding appropriate increase in the interest rate - provided this can be regarded as customary in the market (Fortscher in Frotscher / Drüen, KStG, Appendix to Section 8: Loans with further details).

If no regulations have been made with regard to any repayment modalities, the statutory regulation of § 608 BGB applies. As a result, corresponding repayments are only due in the event of termination by the borrower or lender. The possibility of termination at any time under Section 608 (2) of the German Civil Code (BGB) can, however, in the context of the overall review, speak against seriousness and thus represent an indication of a third-party unusualness (Schallmoser / Eisgruber / Janetzko in Herrmann / Heuer / Raupach, EStG / KStG, Section 8 KStG, note . 314).

2.2 Reasonable Interest

Agreements with controlling shareholders must be made clear and unambiguous in advance. A VGA comes into consideration with controlling shareholders if it is not clearly and unambiguously determined from the outset whether and in what amount a fee is to be paid (see H 8.5 [III] "Controlling shareholder - clear and unambiguous agreement" KStH) The principles also apply to the interest rate.

The appropriateness of the interest rate ensures regular discussions and disputes with the tax authorities during tax audits. It should be noted that the appropriateness check is carried out on a case-by-case basis. If the interest rate is set too high (from the point of view of the tax authorities), a vGA is given from a fiscal point of view. On the other hand, an “interest rate that is too low” is rather uncritical. This applies at least in cases without a foreign connection.

The tax authorities have not yet made any specific statements about the determination of the interest rate. In the literature, there are different approaches and opinions with regard to the various possible investigations. In general, the focus is on whether the interest rate is to be regarded as appropriate, taking into account the care of a prudent and conscientious manager.

It is conceivable to use the standard bank borrowing rate as a guide when determining the interest rate. Because this interest rate can be seen as a standard that a proper and conscientious manager would have used (Lang / Bott in Ernst & Young, KStG, § 8 KStG, margin no. 1235). In this context, the FG Cologne (June 29, 2017, 10 K 771/16, Rev. BFH IR 62/17) in a group case in which the acquisition of shares was financed through bank loans, seller loans and shareholder loans, took the view that for the arm's length comparison with regard to the shareholder loan is to be used solely for the bank loan.

Note | The case law has so far assumed that, in case of doubt, the loan creditors and loan debtors share the spread between the usual bank credit and debt interest rates (cf., inter alia, BFH 10/22/03, I R 36/03). In the literature, however, this method is sometimes viewed as critical or unsuitable (cf., inter alia, Schallmoser / Eisgruber / Janetzko, op. Cit.).

For the FG Münster (7.12.16, 13 K 4037/13 K, F, Rev. BFH IR 4/17), the cost surcharge method is suitable for assessing whether loan interest paid to a sister company within the group is customary . In the literature, however, the judgment is partially rejected (cf. Klingebiel / Lang / Rupp, op. Cit., Item 1116).

In the case of controlling shareholders, the contents of the contract only have a tax effect if they are actually carried out as agreed. An important criterion in this context is that the company pays the interest on time (Klingebiel / Lang / Rupp, op. Cit., Item 1119).

2.3 Consequences of an inadequate interest rate

Adoption: A. Graller agreed with "his" GmbH on January 1st, 2018, basically, arm's length loan terms. In contrast to the arm's length comparison, however, an interest rate of 6% (2% would be appropriate) was agreed. then the following income tax consequences will arise for 2018:

2.3.1 Graller-GmbH level

At Graller-GmbH there is a vGA i. S. of § 8 Abs. 3 S. 2 KStG. Because it is about

  • which is caused by the corporate relationship,
  • affects the amount of the difference in accordance with Section 4 (1) sentence 1 EStG and
  • which is not related to an open distribution.

For 2018, an off-balance sheet addition will be made of the unreasonable interest previously posted to expenses i. H. of EUR 20,000 (EUR 500,000 × 4%). With an estimated income tax rate of 30%, the additional tax amounts to 6,000 EUR.

2.3.2 Shareholder level

A. Graller must have a vGA i. H. of EUR 20,000 tax. This is subject to - unless Graller the separate application i. S. of § 32d Abs. 2 Nr. 3 EStG (see also FG Munich 15.6.16, 9 K 190/16, Rev. BFH VIII R 20/16) - the separate tax rate of § 32d Abs. 1 EStG (Final withholding tax). The tax charge in this case is EUR 5,275 (EUR 20,000 × 26.375%).

Note | In this respect, the so-called consumption theory applies. That means: The tariff (§ 32d Abs. 2 Nr. 1 b EStG) taxable interest income is to be reduced by 20,000 EUR.

2.4 Recommendations for action

Before the loan is granted, the individual components must be regulated. What has been agreed must then actually be carried out afterwards. A. Graller must be made aware of this.

Furthermore, the criteria of the arm's length comparison must be observed. Even if the disregard of individual criteria does not necessarily trigger a VGA, this can, within the framework of the necessary individual assessment, have an indication of a lack of seriousness and unfamiliarity.

As the foregoing has shown, it is sometimes difficult to regulate an appropriate rate of return. There are few binding criteria, especially on this topic, that exclude a possible discussion with the tax authorities from the outset. Therefore, prior to concluding the loan agreement, appropriate evidence of a third-party standard should be provided. It is conceivable z. B. Obtaining (serious) loan offers from various banks, whereby the modalities in the offers should then also correspond to the actual loan.