Die optierende Personengesellschaft nach § 1a KStG als Organgesellschaft in der ertragsteuerlichen Organschaft (English shop)

Untersuchung de lege lata und Ausblick de lege ferenda

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This study shows that partnerships can effectively transfer their profits to a corporate partner by analogous application of § 291 AktG, and that such profit transfer agreements – despite their organisational-law effect – are in principle compatible with the purpose of the partnership and can be concluded without any formal requirements.

Partnerships opting for corporate taxation under § 1a KStG can already de lege lata function as controlled companies within the framework of the income tax group (Organschaft), since § 17 KStG does not require a registered profit transfer agreement or one having organisational-law effect.

Notwithstanding the currently negative position of the tax authorities, the legal situation argues in favour of permitting tax groups with opting partnerships, provided that the requirements are met.

At the same time, the analysis makes clear that the option model should provide the impetus for a fundamental reform towards a group taxation system without a profit transfer agreement, since piecemeal statutory adjustments do not resolve the structural core problem of the Organschaft.