Contributions at a discount: Federal Fiscal Court expresses doubts regarding the increase in value subject to gift tax

A recent ruling by the Federal Fiscal Court (BFH) dated June 6, 2025 (Case No. II B 43/24 (AdV)) is shaking up the practice regarding the gift tax treatment of non-proportional contributions to corporations. Specifically, the BFH expresses serious doubts as to whether a contribution to the capital reserve of a GmbH without a statutory allocation necessarily results in a taxable increase in value within the meaning of Section 7(8), sentence 1 of the Inheritance Tax Act (ErbStG).

This is of considerable importance for GmbH shareholders and their tax advisors, as the practice was previously considered clear: Any shareholder who contributes more than their share (a so-called non-proportional contribution) risks having that contribution treated proportionately as a gift to the other shareholders—with corresponding tax consequences.

Legal Background: What Does Section 7(8), Sentence 1 of the ErbStG Regulate?

• Section 7(8), sentence 1 of the ErbStG clarifies: If the value of company shares increases as a result of a contribution by a shareholder, this may constitute a generous gift to the co-shareholders—with the consequence that gift tax is incurred. This provision is intended to prevent the exploitation of tax planning opportunities through targeted, disproportionate contributions in order to effect tax-free transfers of assets between shareholders.

In practice, this applies in particular to capital increases or voluntary contributions to the capital reserve where the contribution is not made in proportion to the ownership share.

The Case Before the Federal Fiscal Court: A Landmark Decision

In the case in question, the capital reserve of a GmbH was increased through non-proportional contributions. However, the shareholders had agreed that the contribution should be clearly allocated to the respective contributor. This shareholder-specific allocation, however, was not regulated in the articles of association—but was based exclusively on contractual agreements and corresponding resolutions.

The Nuremberg Fiscal Court did not view this as a permanent, binding allocation and affirmed a taxable increase in value in favor of the remaining shareholders. The Federal Fiscal Court (BFH), on the other hand, expresses doubts about this view. It does not see the lack of a provision in the articles of association as a compelling obstacle, provided that the agreements were clearly documented and implemented in a traceable manner.

BFH: Contractual Agreements May Be Sufficient

In the BFH’s view, the gift tax valuation is primarily shaped by the actual legal relationship among the shareholders. Even in the absence of a provision in the articles of association, a personal allocation of the contribution may be effected through shareholder resolutions and presentation in the commercial balance sheet—provided this is documented in a permanent and consistent manner.

In conclusion, the BFH recognizes the subsequent submission or supplementation of such documentation within the framework of preliminary injunction proceedings as permissible—an important signal for tax practice.

Tax Classification and Practical Implications

The BFH’s decision shows that an increase in value subject to gift tax is not automatically presumed when non-proportional contributions are made. The decisive factor is whether specific benefits are allocated to the contributing shareholder, such as:

• an individually increased entitlement to profit distribution
• a disproportionate share of liquidation proceeds
• other individual rights that offset the transfer of assets

In practice, this means: A well-documented contractual arrangement may be sufficient to avoid gift tax—even without being enshrined in the articles of association. Nevertheless, the utmost care is required to ensure clear and tax-compliant documentation.

Recommendations for GmbH shareholders and advisors

• Formulate shareholder resolutions clearly: The allocation of the contribution should be clearly regulated and documented in the resolution.
• Ensure proper accounting treatment: The capital reserve should be reflected in the accounting records and annual financial statements in accordance with the agreements.
• Consider amending the articles of association: Even if the Federal Fiscal Court (BFH) recognizes a contractual arrangement, enshrining it in the articles of association provides greater legal certainty in the long term.
• Seek tax advice early on: Tax risks should be analyzed and minimized as early as the structuring of non-proportional contributions.

Conclusion

The Federal Fiscal Court’s (BFH) recent ruling creates new leeway regarding the tax treatment of non-proportional contributions—while simultaneously emphasizing the importance of precise civil law and accounting structuring. For GmbH shareholders, this offers potential for tax optimization but also entails significant risks in the absence of proper documentation. In practice, early, expert advice is essential. Our tax advisors in Düsseldorf and Oberhausen will assist you in structuring non-proportional contributions in a legally compliant manner, minimizing tax risks, and optimizing your corporate structure.