Die steuerliche Behandlung von Sanierungsgewinnen vor dem Hintergrund des bestehenden Zielkonflikts zwischen Insolvenz- und Steuerrecht

This thesis examined the tax treatment of restructuring gains in light of the conflict of objectives that exists between insolvency law and tax law. It was shown that even after the decision of the Large Senate of the Federal Fiscal Court dated 28 November 2016, a claim may be made to exempt restructuring gains from taxation based on personal or substantive inequity directly based on sections 163, 227 German Fiscal Code if additional criteria that express a particular hardship in the respective case are added to the requirements previously indicated in the restructuring decree issued by the Federal Ministry of Finance.
The fact that lawmakers created a legal basis so swiftly should be welcomed in regard to restructuring, as ought the fact that lawmakers notified the European Commission of their regulatory intent. The examination showed that the arguments in favour of the plans referred to above are so significant that a negative decision by the Commission would be inexplicable in particular in the context of subsidiarity and national sovereignty.
Furthermore, it was shown that a priori there is rightly no constitutional conflict of jurisdiction with the municipalities related to the trade tax given that the process of determining the trade tax factor falls solely within the competence of the tax authorities and, based on established case law, the municipalities have no more authority than what is conferred upon them by the state lawmakers.
In addition, the examination made the attempt to show companies due to be restructured potential ways to circumvent disadvantageous or even economically destructive consequences of debt waivers that had previously been subject to value added tax. In this context, it was shown that a remission in the area of value added tax cannot be obtained with certainty on substantive grounds of inequity.
Furthermore, the study confirmed that the new definition of a gift under section 7 subsection (8) of the Inheritance and Gift Tax Act was not chosen particularly well given that the text is drafted too broadly. A qualification by means of interpretation, in particular in light of the legislative intent, is required in this case.