BFH allows §6b reserves to roll into KGaA assets

Hidden reserves parked under § 6b Einkommensteuergesetz (EStG) can be rolled into assets of a KGaA where the investors act as personally liable shareholders.Bundesfinanzhof In a judgment of 21 May 2026 (IV R 21/23, ECLI:DE:BFH:2026:U.210526.IVR21.23.0), the Bundesfinanzhof (BFH) IV. Senat held that stille Reserven from a reserve formed under § 6b Absatz 3 EStG at a partnership can be transferred to the acquisition costs of assets of a Kommanditgesellschaft auf Aktien (KGaA) in which the partners participate as persönlich haftende Gesellschafter (phG).Bundesfinanzhof The court vacated the Finanzgericht Köln judgment of 13 July 2023 (1 K 1783/18) and remanded for findings on whether the receiving side actually deducted the reserves.

Three limited partners sold GmbH & Co. KG interests in 2011, formed reserves of 1,264,000 EUR under § 6b Absatz 3 EStG on exit, then founded a KGaA as Kommanditaktionäre and phG; the KGaA bought two developed plots and 1,145,380.69 EUR of the reserves were applied against those costs. The Finanzamt rejected any transfer to a corporation's assets and dissolved the reserves with profit effect.

The BFH sided with the taxpayers on the principle. Under the partner-related view of § 6b EStG, reserves may be transferred not only within one business but across entities: to assets of the partner's sole proprietorship or special business property, or pro rata to assets of another partnership in which the partner participates.Bundesfinanzhof A phG of a KGaA is treated like a partner for this purposeBundesfinanzhof: although the KGaA is a corporation with its own property, its hybrid structure means the phG profit shares are split off at the root from corporation tax and attributed directly as business income under § 15 Absatz 1 Satz 1 Nummer 3 EStG, applying partnership transparency principles. The transfer works by reducing the phG's proportionate acquisition costs in a supplementary balance sheet at the KGaABundesfinanzhof — the same technique used for cross-partnership transfers — and neither the KGaA's corporate form nor the wording of § 6b, including § 6b Absatz 10 Satz 10 EStG, blocks it.Bundesfinanzhof The purpose of deferring tax on realised gains so liquidity stays available for reinvestment is equally served where the reserves follow the same persons into the KGaA without any personal shifting.

The negative assessment notice issued for the KGaA does not bar the transfer.Bundesfinanzhof The tax office responsible for the KGaA had refused a separate uniform assessment for 2011 for lack of an assessment community; that refusal binds only as to the absence of such proceedings, not as to the transfer, which falls to be reflected in the phG income tax assessments under § 15 Absatz 1 Satz 1 Nummer 3 EStG.Bundesfinanzhof

The judgment was still vacated: the reinvesting business decides whether and how far it deducts reserves from its assets' costsBundesfinanzhof, and the Finanzgericht had assumed an effective deduction without establishing the receiving-side decisionBundesfinanzhof — a finding it must now make in the phG income tax assessments.Bundesfinanzhof Gains of 73,476.69 EUR, 16,523.69 EUR and 28,618.65 EUR per claimant stand reduced in any event, since those portions were carried beyond 2011.

Legal basis: § 6b Absatz 1, 3, 7 and 10 EStG with § 15 Absatz 1 Satz 1 Nummer 3, § 16 and § 34 Absatz 1 Satz 4 EStG; BFH judgment IV R 21/23 of 21 May 2026, vacating Finanzgericht Köln 1 K 1783/18 of 13 July 2023.