Shareholding in a GmbH as a special business asset - A loss is not to be taken into account for tax purposes
The allocation of shareholdings to special business assets is periodically the subject of intensive discussions with the tax authorities. In particular, the distinction between essential special business assets and elective ones (i.e., voluntarily designated as being for business purposes) requires a differentiated economic analysis.
The Federal Fiscal Court (Bundesfinanzhof, BFH), in its ruling of 25.9.2025 (case reference: IV R 12/23) decided that a shareholding in a GmbH (limited liability company) may only be treated as an essential special business asset if it is capable of reinforcing the shareholder’s co-entrepreneur status in the long term. A mere equity participation without significant influence on the management or the strategic focus is not sufficient.
In the case in question, in the course of a capital increase, a limited partner had acquired a 3.8% stake in a GmbH, which had business relations with the partnership. Following the sale of the stake, the partner claimed the loss that had arisen as a special business loss. However, the BFH denied that there had been functional interdependence of sufficient importance. The stake had neither conferred a dominant position nor substantially increased the influence on the operating activities.
The partner also failed to classify the stake as an elective special business asset. In the opinion of the BFH, an economic good can only be voluntarily designated as being for business purposes if is objectively capable of promoting the business. If the purchase price – as in the case in question – was significantly higher than the market value, then this would be an argument against there being a commercial reason for the purchase.
