A foundation that inherits shares under a seven-year lock-up
BundesfinanzhofBundesfinanzhof and sells themBundesfinanzhof pays income tax as the contributor's successorBundesfinanzhof. In the judgment of 22 September 2026Bundesfinanzhof, X R 8/24Bundesfinanzhof, the X. Senat rejects the revision of a StiftungBundesfinanzhof against the Finanzgericht München judgment of 9 February 2024, 8 K 602/23. An Einbringungsgewinn I triggered when the foundation as heir sells inherited shares within seven yearsBundesfinanzhofBundesfinanzhof is retroactively attributed to the contributorBundesfinanzhof. The foundation is taxed on it in its capacity as GesamtrechtsnachfolgerinBundesfinanzhof, under the Einkommensteuer regime, not as its own corporation-tax incomeBundesfinanzhof. § 22(6) Umwandlungssteuergesetz 2006 is teleologically reducedBundesfinanzhof and does not govern personal attributionBundesfinanzhof.
The decedent held a Kommanditbeteiligung in a KG. In 2008 the KG and its Komplementär-GmbH merged into an AG with tax transfer date 31 December 2007, treated as a contribution of all partnership interests for new shares under § 20 UmwStG 2006 at book values. She died in 2011, the foundation as sole heir sold the shares later in 2011, within seven years. It is undisputed that a 2,155,359 Euro Einbringungsgewinn I is retroactively taxable in 2007Bundesfinanzhof. The Finanzamt assessed it in the 2007 Gewinnfeststellung for the AG as successor of the KG to the foundation as successor of the decedent. The foundation claims direct attribution to itself under § 22(6) UmwStG 2006, which would apply its Körperschaftsteuer rate instead of the decedent's personal Einkommensteuer rate. Objection and claim failed: the wording of § 22(6) is not decisive and system requires attribution to the original contributorBundesfinanzhof.
The foundation reads gilt der Rechtsnachfolger als Einbringender as a comprehensive fiction and invokes § 6(3) Einkommensteuergesetz (EStG) for successor taxation where the successor triggers the charge. The Senat leaves costs on the claimant, confirms standing and procedure without joining the dissolved KG, the AG or former partners, and confirms the 2007 gain under § 22(1)(1) UmwStG 2006 with amount under § 22(1)(3) as common value minus takeover value less one-seventh per elapsed year, undisputed.
The wording admittedly supports the foundation, and the materials are unhelpful because the government draft taxed the gain at sale while the enacted version taxes retroactively at contributionBundesfinanzhof. System and purpose decide. The fiction covers only §§ 22(1) to (5) and not the § 20 contribution itselfBundesfinanzhof; the 2006 system centres the earlier contribution person, time and fixed amount, not later sale proceedsBundesfinanzhof, and succession had not yet occurred. A later-born or later-founded successor could otherwise be taxed for a period ending years before birth or formation, unlike the eight-month retroactivity for mergers, which only avoids interim accounts. Comparable lock-ups attribute retroactively to the transferor, the transferor earned the reserves under the Subjektsteuerprinzip, and § 38 Abgabenordnung (AO) is satisfied because the earlier privileged for-consideration transfer warned that freedom depends on the lock-up, manageable by contract or testamentary conditions including for a Vermächtnisnehmer. § 6(3) EStG is an exception under GrS 2/04, not a general idea, and the § 22(3) annual proof duty passes only ex nunc from succession.
Purpose is to secure domestic reservesBundesfinanzhof and prevent a regime shiftBundesfinanzhof: income-tax reserves would otherwise move into corporation tax merely through inheritance by a foundationBundesfinanzhof, a gap § 22(1)(6)(1) UmwStG 2006 misses for foundations by legislative oversight. The reading is neutral and also keeps corporation-tax gains in that regime when moving the other way, as with a foundation to a Destinatär or a company to its shareholder. The narrowing matches the administration, the IV. Senat for trade tax and part of the literature. The guide invokes §§ 20 and 22 UmwStG 2006, § 6 EStG and § 38 AO across the sections above.
Where locked-up shares pass gratuitously, keep the original contributor as the Einbringungsgewinn I taxpayer with successor liability, and secure the lock-up by contract or testamentary conditions.
