Tax group - Requirements for the implementation of a profit transfer agreement

The BFH, in its ruling of 5.11.2025 (case reference: I R 37/2), decided that recognition of a tax group by the tax authorities requires the prompt satisfaction of the claims arising from the profit transfer agreement. In the opinion of the court, to this end, the satisfaction of the claims within twelve months after the due date would generally be sufficient.

In the view of the BFH, the actual implementation of the profit transfer agreement is not limited solely to the origin of the claims under civil law. Rather, it is also a requirement that the corresponding claims and liabilities are properly recorded in the annual financial statements. In doing so, it is not strictly necessary to disclose these separately in the balance sheet, provided that it is clear from the list of accounts that the relevant obligations have been recognised.

In the case in question, the failure to obtain tax recognition was due to the fact that the profit transfer claims were only settled several years after their due date. The BFH expressly clarified that merely satisfying the claims subsequently - for example, following the termination of the tax group - would not be sufficient. The court took a particularly critical view of recognition via the “liabilities to shareholders” account. Admittedly, a genuine clearing account may generally be appropriate to satisfy claims. However, the prerequisite for this would be, in particular, recording these in the current account and a regular settlement of the account within the meaning of Section 355 of the German Commercial Code. As there was no such settlement in the case in question and solely profit claims were cumulatively recognised, the BFH assumed that the clearing account was merely a “spurious” one. Therefore, the claims had not been effectively satisfied.