If a share transfer is agreed as part of a marriage contract to fulfill the equalization of gains, an error about the tax consequences can be corrected retroactively under certain circumstances. This means that there is no income tax, even though the contract initially triggered a taxable sales transaction.
Equalization of gains and tax consequences
When equalizing gains in a marriage, especially in the event of a divorce or a change to separation of property, the equalization can also take place in the form of the transfer of company shares. From a tax perspective, however, this is usually a sale transaction within the meaning of Section 17 of the Income Tax Act, with the result that income tax is due on any capital gains. This is often overlooked because those involved assume that internal asset transfers remain tax-neutral.
The error in the conclusion of the contract
In the case on which the Federal Finance Court (BFH, IX R 4/23 of May 9, 2025) had to decide, a husband transferred GmbH shares to his wife in order to fulfill the equalization of gains. According to their tax advisor, both contractual partners were convinced that the transfer would have no tax consequences. However, this assumption turned out to be wrong. The tax office assessed the transfer as a taxable transaction and assessed income tax on the capital gains. The unexpected tax access made a subsequent correction necessary, as Steuertipps.de reports.
Reversal through change agreement
The spouses decided to reverse the share transfer. To this end, they concluded a notarized change agreement in which the shares were transferred back to the husband. Instead, the wife was entitled to a monetary payment, the due date of which was postponed. The error about the tax consequences was the main reason for this contract change, as attorneys Meyer-Köring emphasizes.
Judicial assessments
The tax court agreed with this view. It assessed the reversal as if the share transfer had never occurred. This also eliminated the taxable profit.
The Federal Finance Court confirmed this decision. As rsw.beck.de reports, the judges saw the mutual error about the tax consequences as a central part of the contract. When this error was discovered, the basis for the marriage contract no longer existed. An adjustment in accordance with Section 313 of the German Civil Code (BGB) was therefore permitted. The reversal was recognized for tax purposes, so that the tax claim expired.
Editorial team finanzen.net
