BFH: 60% stake plus sole manager founds VAT group; § 176 filing needed

Financial integration for a VAT group (Organschaft) no longer requires the parent to command the supermajority the subsidiary's charter demands for shareholder resolutionsBundesfinanzhof: a 60 percent capital stake plus the position as the subsidiary's sole managing director sufficesBundesfinanzhof. In its judgment of 2 July 2026 (V R 36/24)Bundesfinanzhof, the V. Senat of the Bundesfinanzhof applies its changed case law of 18 January 2023 (XI R 29/22)Bundesfinanzhof to a constellation where the subsidiary's articles required a two-thirds majorityBundesfinanzhof, and it pairs that holding with a procedural sting: where the group exists only by virtue of the changed case law, the assessment against the subsidiary can be cancelled only if the parent files to amend its own, still amendable assessmentBundesfinanzhof, waiving the legitimate-expectations protection of section 176(1) sentence 1 no. 3 of the Fiscal Code (Abgabenordnung).

The dispute arose from the 2012 VAT assessed against an insolvent GmbH whose sole shareholder since its 2011 foundation was another GmbH, whose owner-manager was also the subsidiary's sole managing director until 2017. Until 12 October 2012, 40 percent of the shares were held in trust for a third party, with voting rights delegated and a reserved right to appoint a further manager; on that date the parent bought back all trust rights. The auditor denied financial integration because of the trust; the Finanzgericht München instead held the group to exist throughout, compensating the weak voting position with the particularly strong organisational integration through identity of management.

The Bundesfinanzhof confirms the group for the whole of 2012, including the pre-October periodBundesfinanzhof. Under the old case law the parent's 60 percent vote fell short of the charter's two-thirds quorumBundesfinanzhof, but under the 2023 turn a capital majority plus the sole managing-director post secures the required enforcement of willBundesfinanzhof. Hypothetical future events — such as who would appoint a successor manager if the incumbent died — cannot dissolve the group for the period before any reappointment, and the trust questions need not be resolved: had the trust been disregarded for tax purposes, the parent would simply have counted as sole shareholder.

But the victory on the merits does not yet erase the 2012 assessment entered in the insolvency schedule. Because the group for the pre-October period rests solely on the 2023 change of case lawBundesfinanzhof, section 176 protection stands in the way unless the parent applies under section 172(1) sentence 1 no. 2(a) AO, before its own assessment period expires, to have the subsidiary's turnover attributed to it — thereby acting consistently and waiving the protectionBundesfinanzhof. The court remands to München to establish whether that application is still possible, including via section 174(3) AO where assessments interact, and in what amount 2012 VAT falls on the group period; the administrator's figure of negative 130,318.88 euros, stated as of end-October 2012, was never verified. For the post-October period, where integration already existed under the old law, no such application is needed. The 2013 portion of the appeal was withdrawn and is final.

Legal basis: § 2 Abs. 2 Nr. 2 UStG; § 176 Abs. 1 Satz 1 Nr. 3 AO; Article 11 of Directive 2006/112/EC; BFH judgments V R 36/24 of 2 July 2026, XI R 29/22 of 18 January 2023 and V R 5/23 of 5 September 2024.