Waiver of claims against GmbH as loss from capital assets

The waiver of a claim against the GmbH may result in a loss from capital assets if the claim is not recoverable.

Since the introduction of the flat rate withholding tax, the loss of a normal loan receivable generally leads to a loss that must be taken into account for tax purposes. Things get a little more complicated when it comes to a shareholder's loan to his GmbH, because then the tax office can also assess the waiver of the claim as a hidden contribution. The German Federal Fiscal Court has now clarified that the shareholder's waiver of the non-recoverable portion of his claim is equivalent to an assignment and thus, since the introduction of the flat rate withholding tax, leads to a loss on the claim that must be taken into account for tax purposes.

However, the waiver of the receivable only has real tax effects if the shareholder has incurred acquisition costs for this non-recoverable portion of the receivable. The waiver of the recoverable portion of the receivable, on the other hand, results in a contribution. However, the amount waived by the shareholder must be higher than the nominal value of the non-recoverable portion of the loan receivable.