Formwechsel equity counts as contribution against interest add-back

Positive tax equity taken over when a corporation converts into a partnership counts as a contribution against the interest add-backBundesfinanzhof, even though the conversion transfers nothing under civil lawBundesfinanzhof. In IV R 10/24 of 2 September 2026 the IV Senate of the Bundesfinanzhof dismissed the tax office's revisionBundesfinanzhof against the Finanzgericht Münster judgment of 12 June 2024 (6 K 564/19 G,F), removed a 52,082.20 EuroBundesfinanzhof add-back of non-deductible debt interestBundesfinanzhof for 2012Bundesfinanzhof from profit determination and trade-tax measurementBundesfinanzhofBundesfinanzhof, and imposed costs on the office.

The claimant, a GmbH & Co. KGBundesfinanzhof created with effect from 1 January 2010Bundesfinanzhof by converting R-GmbHBundesfinanzhof under § 9 UmwandlungssteuergesetzBundesfinanzhof, sits in a two-tier chainBundesfinanzhof with no natural personsBundesfinanzhof: sole capital partner S-GmbH & Co. KG, complementor R-Verwaltungs GmbH, and S-SE & Co. KG above S-KG. Starting the over-withdrawal account at zero on 1 January 2010Bundesfinanzhof, the office accumulated withdrawals against 2010–2012 profits and contributionsBundesfinanzhof, applied the typified 6 percent rateBundesfinanzhof and added back 52,082.20 Euro under § 4 Abs. 4a EinkommensteuergesetzBundesfinanzhof; figures, business purpose and non-withdrawal financing of the debt were undisputed.

The rule still reaches the lower partnershipBundesfinanzhof, but the converted equity enters as a contributionBundesfinanzhof. Section 4 Abs. 4a applies operation by operation wherever a separate profit determination is madeBundesfinanzhof, confirming IV R 8/21 of 27 September 2023: it attaches to the business, not the partners' legal formBundesfinanzhof, and withdrawals mean any non-business equity reductionBundesfinanzhof. Abuse motives are irrelevantBundesfinanzhof because they left no trace in the typified statuteBundesfinanzhof, and the simplification purpose covering the inroad into the objective net principleBundesfinanzhof extends to multi-tier chainsBundesfinanzhof.

A literal Einlage under § 4 Abs. 1 Satz 8 needs assets fed from the partners' sphereBundesfinanzhof, and a Formwechsel moves nothing civillyBundesfinanzhof — only the legal form changesBundesfinanzhof. For tax, however, § 9 Satz 1 UmwStG with §§ 3 to 8 and 10 deems an asset transferBundesfinanzhof precisely because the regimes differBundesfinanzhof, so the two businesses count as separate operations receiving the equityBundesfinanzhof. The equity model confirms it: equity built by profits and contributions and consumed by withdrawals and losses marks what may be taken without triggering the ruleBundesfinanzhof, and a cross-operation equity shift is at least contribution-likeBundesfinanzhof. A conversion is therefore treated like a business openingBundesfinanzhof, whose initial funding countsBundesfinanzhofBundesfinanzhof and whose opening balance § 9 Satz 2 UmwStG requiresBundesfinanzhof.

The office's defences fail on their own termsBundesfinanzhof. Successions under § 6 Abs. 3 EStG and contributions under § 24 UmwStG carry forward existing over- or under-withdrawalsBundesfinanzhofBundesfinanzhof — but a corporation cannot have anyBundesfinanzhof, since § 4 Abs. 4a never applies to itBundesfinanzhof for want of a non-business sphereBundesfinanzhof. The start-capital rule now in § 52 Abs. 6 Satz 8 EStG only caps the total period for pre-1999 businessesBundesfinanzhof and says nothing about post-1999 openingsBundesfinanzhof, whose initial funding counts; conversions are treated the sameBundesfinanzhof.

With the converted positive equity booked as opening contribution, no 2012 over-withdrawal remainedBundesfinanzhof, so the add-back fell awayBundesfinanzhof. Partnership advisers should book taken-over corporate equity as the opening contribution in every post-conversion § 4 Abs. 4a accountBundesfinanzhof — while applying the rule at each sub-partnership levelBundesfinanzhof.

The result follows from § 4 Abs. 4a Satz 2 EStG as interpreted in light of its purposeBundesfinanzhof, read with § 9 Satz 1 and 2 i.V.m. §§ 3 bis 8, 10 UmwStGBundesfinanzhof.