The Münster Fiscal Court has ruled that the successive disposal of insurance portfolios in return for compensation payments is subject to the preferential tax treatment under Section 34 (2) no. 2 EStG.
Practical example:
As a commercial agent within the meaning of Section 89b HGB, the plaintiff brokered insurance products as well as health and legal expenses insurance policies from an insurer and earned (portfolio) commissions from the insurance portfolio. From 2008, the plaintiff continued the previous sole proprietorship jointly with other partners as a general partnership. In 2016, the plaintiff held a 50% share in the total insurance portfolio. On 1.2.2017 and 1.2.2018, the plaintiff transferred 10% of the total insurance portfolio to two other partners. For the transfer, it was intended that the plaintiff would receive a compensation amount from the insurer in each case, which was to be determined in accordance with the principles for calculating the compensation claim pursuant to Section 89b HGB. The compensation payments by the insurer were made in the respective years of the transfer of the insurance portfolio.
In the 2017 and 2018 profit assessment notices, the tax office did not take into account any income for the plaintiff that was subject to preferential tax rates. The tax office justified this by stating that the compensation payment from the insurer for the transfer of the plaintiff's insurance portfolios was made in two payments in different assessment periods (2017 and 2018) and that there was therefore no accumulation of income. The appeals lodged against this were unsuccessful.
The Münster Fiscal Court upheld the claim and treated the compensation payments made in 2017 and 2018 as income subject to tax relief. The compensation payments calculated in accordance with Section 89b HGB were to be treated as compensation within the meaning of Section 24 no. 1 lit. c EStG and lead to an increased tax burden due to the accumulation of income. The compensatory nature of the compensation payments also results from the fact that the commission income decreased significantly after the respective partial levies. Moreover, both partial portfolio levies each constituted an independent claim to compensation with an independent compensation character. Each partial inventory levy is accompanied by the waiver of future commission claims.
Each partial surrender was to be considered separately, as the claimant could not have brought about the respective claims on his own. The cooperation of the insurer was required in each case.
Note: The tax court has allowed an appeal to the BFH: Ref. IV R 6/26.